Mt^i^'p^^ 


.■•I 


^ 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


GIFT  OF 


James  R«  Hutter 
'U7  Bus,  Adm. 


LEADING 


CASES  SIMPLIFIED. 


A  COLLECTION'  OF  THE  LEADING  CASES  IN 


EQUITY  AND  CONSTITUTIONAL  LAW. 


JOHN    D.    LAWSON, 

Author  of  "A  Concordance  of  Words,  Phrases  and  Definitions,' 
"  Usages  and  Customs,"  "  Expert  and  Ojnnion  Evidence." 


ST.  LOUIS: 
F.  H.  THOMAS  &  COMPANY. 

188.3. 


I^^b 


Entered  according  to  Act  of  Congress,  in  tlie  .year  18S3,  by 

JOHX  D.  LAWSOX, 
In  tlie  Office  of  the  Librarian  of  Congress,  at  Washington- 


I'ress  of  Nixon- Jones  Printing  Co. 


PREFACE. 


The  favor  with  which  my  fii'st  volume  of  Leading  Cases 
Simplified  has  been  received  by  the  profession  is  the  in- 
ducement which  has  led  me  to  treat  tlie  cases  in  P]quity  and 
in  Constitutional  Law  in  the  manner  I  before  adopted  in 
presenting  to  the  practitioner  and  the  student  the  leading 
cases  of  the  Common  Law., 

I  take  the  liberty  to  repeat  in  this,  Yny  second  volume  of 
Leading  Cases  Simplified,  the  aim  which  I  announced  in 
my  first  volume:  1.  To  give  the  reader  a  collection  of  the 
acknowledged  leading  cases  in  Equity  and  Cox-stitutional 
Laav.  2.  To  present  these  in  a  style  which  shall  arrest  his 
attention,  render  it  possible  for  him  to  acquire  their  princi- 
ples readily,  and  fix  those  principles  in  his  mind  unincum- 
bered by  unimportant  and  sometimes  unintelligible  facts. 
How  far  I  have  succeeded  in  both  volumes  I  leave  the 
profession  to  judge. 

Tlie  many  exceptions  to  which  all  the  elastic  rules  of 
equity  are  subject  have  made  it  necessary  for  me,  in  many 
instances,  to  append  notes  to  the  cases  in  which  to  set  out 
and  explain  these  exceptions.  The  spaces  left  at  the  ends  of 
these  notes  the  student  will  find  convenient  places  in  which 
to  mark,  for  his  own  instruction,  any  subsequent  cases  which 
may  come  under  his  notice  in  his  reading. 

I  intend  at  an  early  day  to  complete  this  series  by  a 
volume  of  Leading  Cases  in  the  Criminal  Law. 


J.  D.  L. 


St.  Louis,  June,  1883. 


740778 


CONTENTS. 


PART     I. 

EQUITY   CASES   SIMPLIFIED. 
TRUSTS. 

PAGE. 

TJsEs  AND  Trusts  — 

Tyrrel  's  Case ■      .         .         .        .        1 

Note 1,  2,  3 

Shelleifs  Case 4 

Note i,  5 

Executed  and  Executory  Trusts  —  "Equity  Follows 
THE  Law"  — 

Lord  Glenorchy  v.  Bosville 6 

Note 7 

Imperfect  Conveyaxce  may  Constitute  a  Trust  — 

Wadsworth  v.  Wendell 8 

Note 8,  9,  10 

Ellison  \ .  Ellison 8 

Antrohus  v.  Smith 9 

Bichards  v.  Delbridge 10 

Precatory  Trusts  — 

Harding  v.  Glyn .11 

Note .  U,  12,  13 

Greene  v.  Greene 12 

Wynne  v.  Hawkins 12 

Sale  V.  Moore 13 

Kesulting  Trusts  —  Party  Paying  Purchase  Money  —  Ad- 
vancement — 

Dyer  v.  Dyer 14 

Note 15,  16,  17 

Dudley  v.  Bachelder      .        .        .        .        .        .15 

Ex  parte  Yallop    . 16 

Baldioin  v.  Campfield 16 

(V) 


VI  CONTENTS. 

PAGE 

Failure  of  Trust  — 

Mayor  of  Gloucester  v.  Wood 18 

Note     .        .        . 18,  19 

Charitable  Trusts  —  The  Cy  Pres  Doctrine  — 

Jackson  v.  Phillips 20 

Note 21 

Constructive    Trusts  —  Vendor's   Lien    for    Purchase 
Money  — 

Mackreth  v.  Symmons 22 

Note 22,  23 

Same  —  Purchases  by  Trustees  — 

Keech  v.  Sandford .        .24 

Fox  V.  Mackreth 25 

Note 25,  26 

Robinson  v.  Pett 26 

Purchases  from  Trustees  — 

Elliot  V.  Merryman 27 

Note 28 

Responsibility  for  Act  of  Co-Trustee  — 

Townley  v.  Sherborne 29 

Brice  v.  Stokes 30 

Note     .........        30,  31 

WILLS. 
Wills  — 

Ashburner  v.  Macguire 32 

Bland  v.  Mayo 32 

Smith  V.  Lampton .        .33 

Note 34,  35 

Donatio  Mortis  Causa  — 

Ward  V.  Turner 36 

■   Note 36,  37,  38 

Gourley  v.  Linsenbigler         .....      37 

Edioards  v.  Jones 37 

Jones  V.  Selby 37 

Moore  v.  Darton  .         .         .         .         .         .         .37 

Haiokins  v.  Blewitt 38 

Sneckner  v.  Taylor 38 


CONTENTS.  Vll 


MISCELLANEOUS. 

PAGE 

Conversion  —  "Equity  Looks   on  that  as  Done  which 
Ought  to  be  Done  "  — 

Fletcher  v.  Ashburner 39 

Note 39,  40 

Ackroyd  v.  Smithson 41 

Note     . 43 

Election  — 

Wilbanks  v.  Wilbanks 44 

Brodie  v.  Barry 44 

Coo'Qer  V.  Cooper 45 

Note 46,  47 

Performance  —  "  Equity  Imputes  an  Intention  to  Fulfil 
AN  Obligation  " — 

Wilcocks  V.  Wilcocks 48 

Blandy  v.  Widmore 48 

Oliver  v.  Brickland    .        .        .        ...        .         .49 

Note 50,  51 

Lechmere  v.  Earl  of  Carlisle       ....      50 
Satisfaction  — 

Talbot  V.  Duke  of  Shretcsbury 52 

Chancey''s  Case 52 

Strong  v.  Williams 53 

Hooley  v.  Hatton 53 

Ex  parte  Pye       .        .        .        . 54 

Note •        .         .         .      55,  5G,  57,  58 

Clark  V.  Seioell 56 

Dewitt  V.  Yates 56 

Coventry  y.  Chichester .        .        .        ..         ...      58 

Administration  of  Assets  — 

Duke  of  Ancaster  v.  3Iayer 59 

Note     ,         .         .         „         .         .         .         .         .  59,  60,  61 

Marshalling  Assets  — 

Aldrich  v.  Cooper 62 

Note 62,  63 

Equitable  Mortgages  — 

Bussell  V.  Bussell       ........      Gi 

Note 64,  65 


VUl  CONTENTS. 

^  ^  PAGE 

Tenancy  in  Common  —  "  Equality  is  Equity  "  — 

Lake  v.  Gibson  .        .        • .66 

Lake  v.  Craddocfc 66 

J^ote 66,  67 

Morley  v.  Bird      .         .         ,    •    .         .         .         .66 
Penalties  and  Forfeitures  — 

Sloman  v.  Walter 68 

Peachey  v.  Duke  of  Somerset 69 

yote 69,  70 

CONTKIBUTION  —  "  EQUALITY  IS  EQUITY  "  — 

Bering  v.  Earl  of  Winchelsea 71 

^ote 71,  72: 

MARRIED   WOMEN. 

Married  Women  —  Equity  to  a  Settlement  —  "He  who 
Seeks  Equity  must  do  Equity  "  — 

Lady  EUhank  v.  Montolieu 73 

Murray  v.  Lord  Elibank .74 

JSfote 74,  75,  76 

Married  Women  —Rights  and  Liabilities  as  to  Separate 
Estate  — 

Jaques  v.  Methodist  Episcopal  Church      ....      77 
Methodist  Episcopal  Church  v.  Jaques      ....      77 

Note 78,  79. 

Married  Women  —  Separate  Estate  and  Restraint  upon 
Alienation  — 

Tullett  V.  Armstrong 80 

Note 80,  81 

ACCIDENT. 

Loss  of  Documents  — 

Lawrence  v.  Lawrence 82 

Note 82,  83,  84,  85 

Imperfect  Execution  of  Powers  — 

Toilet  V.  Toilet 86 

Note 86,  87 

Powers  Coupled  with  Trusts  — 

Withers  v.  Yeadon 88 


CONTENTS.  IX 

Page 
Accidental  Forfeituues  — 

Bostvoick  V.  Stiles 8!) 

Accidental  Penalties  — 

Jones  V.  Lewis 92 

Note 92,  93 

MISTAKE. 

Mistakes  of  Law  — 

Hunt  V.  JRousmaniere 94 

Lansdowne  v.  Lansdowne  .......  95 

Stapleton  v.  Stapleton        . 96 

Gordon  v.  Gordon 96 

Note 97,  98 

Tyson  v.  Tyson    .        .    • 97 

Westvy  V.  Westvy 98 

Mistakes  of  Fact  — 

Brown  v.  Lamphear 99 

Note 100,  101 

FRAUD. 

Contracts  in  Restraint  of  Marriage  — 

Maddoz  v.  Maddox 102 

Bargains  with  Heirs  — 

Chesterfield  v.  Janssen 104 

Note 104,  105,  106 

Nevill  V.  Snelling 105 

Bargains  Between  Persons  in  Fiduciary  Relation  — 

Huguenin  v.  Baseley 107 

Note 107,  108 

Frauds  upon  Creditors  — 

Sexton  V.  Wheaton 109 

Note 110 

Frauds  upon  Marital  Rights  — 

Countess  of  Strathmore  v.  Bowes Ill 

Note 112 

Taylor  v.  Pugh 112 

Frauds  on  Powers  — 

Aleyn  v.  Belchier 113 

Note .     113,  114 


X  CONTENTS. 

PAGE 

Bona  Fide  Purchasers  — 

Basset  v.  Nosworthy 115 

Note ' .        .        .115 

SPECIFIC  PEEFORMANCE. 

Not  Generally  Decreed  of  Chattels  — 

Cuddee  v.  Butter 116 

Articles  of  Special  Value  — 

Pusey  V.  Pusey 118 

Duke  of  Somerset  v.  GoYdon 118 

Note 118,   119,  120 

Phillips  V.  Berger 119 

Fells  V.  Beed 119 

Duncuft  V.  Albrecht 119 

Buxton  V.  Lititer 120 

Contracts  Relating  to  Real  Property  — 

Seton  V.  Slade •         .  121 

Lester  v.  Foxcroft 121 

Woollam  V.  Hearn 122 

Note 122,  123,  124 

When  Specific  Performance  not  Decreed  — 

Dodson  V.  Swan 125 

Note 125,  126 

Jurisdiction  op  Equity  —  ♦'  Equity  Acts  in  Personam  "  — 

Penn  v.  Lord  Baltimore 127 

Note 127,  128 

INJUNCTIONS. 

Enjoining  Proceedings  at  Law  — 

Marine  Lis.  Co.  v.  Hodgson 129 

Note 130,  131 

Earl  of  Oxford 's  Case 130 

Injunction  to  Restrain  Violation  of  Contracts  — 

Steward  v.   Winters 132 

Note 133,  134 

Restraining  Nuisances  — 

St.  Helen's  Smelting  Co.  v.  Tipping  .         .         .         .'      .  135 

Note 137 


CONTENTS.  XI 

FA.GB 

Public  Nuisance  Enjoined  by  Equity  — 

Hamilton  v.  Whitridge 138 

Note .     138,  139 

Nuisance  from  Noxious  Vapors  — 

Campbell  v.  Seaman 140 

Note 140,  141,  142 

Peck  V.  Edler 142 

Nuisance  from  Noisb  —  Bells  — 

Soltau  V.  De  Held 143 

Note 144,  145 

Harrison  v.  St.  Mark^s  Church  ....     145 
Nuisance  from  Noise  —  Improper  Use  — 

Br  Oder  v.  Saillard 146 

Note 147,  148 

Ball  V.  Bay 148 

Nuisance  from  Noise  —  Proper  Use  — 

Pool  V.  Coleman 149 

No  Trade  a  Nuisance  Per  Se  — 

Catlin  V.  Valentine 153 

Note 154,  155 

Arnot  V.  Brown    . 154 

Flint  V.  Bussell 155 

Nuisance    may    be   Disagreeable   without   Being   Hurt- 
ful — 

Walter  v.  Selfe 156 

Note 157,  158 

Dennis  v.  Eckhardt 157 

Cook  V.  Forbes 158 

Coming  to  Nuisance  — 

Brady  v.  Weeks .         .     159 

Smith  V.  Phillips ,.         .160 

Note 161 

Nuisance  —  Length  of  Time  Immaterial  — 

Boss  V.  Butler 162 

Note 163 

Com.  V.  Gallagher 163 

Infringement  of  Patents  — 

Caldwell  v.  Vanvlissengen 164 

Note 165,  166 


Xll  CONTENTS. 

PAGE 

Literary  Piracy  — 

Prince  Albert  v.  Strange .167 

Folaom  v.  Marsh .         .167 

Note 168,  169 

Martinetti  v.  Maguire 168 

Trade-Marks  —  Family  Name  Used  to  Deceive  — 

Croft  V.  Day 170 

Trade-Marks  —  No  Relief  to  Wrong-Doek  — 

Seabury  v.  Grosvenor         .         .         .         .         .         .         .171 

Note 171,  172,  173 

McAndrew  v.  Basset 172 

Maxioell  v.  Hogg  .         .         .         .         .         .         .172 

Yoitng  y.  Macrae 172 

Braham  v.  Bustard      .        .        .        .        .        .173 

Trade-Marks  —  Family   Name    Used  witroutt  Intent  to 
Deceive  — 

Meneely  v.  Meneely 174 

Note 175 

Statements  as  to  Former  Employment  — 

Glenny  v.  Smith         .         . 176 

Note 177,  178 


PART     II. 

CONSTITUTIONAL    CASES    SIMPLIFIED. 

CHAPTER  I.  —  GENERAL  PRINCIPLES. 

General  Limitations  in  Constitution  do  not  apply  to 
THE  States  — 

Barron  v.  Mayor  of  Baltimore 181 

Note ,         .     182,  183,  184 

Implied  Powers  — 

McCullough  v.  State  of  Maryland 185 

Note     , 186,  187 

Martin  v.  Hunter's  Lessee 186 


CONTENTS.  XI  :i 

CHAPTER  II.  — THE  POWER  OF  TAXATION. 

PAGE 
EXTKNT  OF    THE  TAXING  POWER  — 

Providence  Bank  v.  Billings       ......     188 

Note 189,  190,^191 

St.  Louis  V.  Ferrii   Co.         .....     191 

Tax  must  be  for  Public  Purpose  — 

Loan  Association  v.  Topeka 192 

Note 192,  193 

Lowell  V.  Boston  .......     193 

State  V.  Osawkee  Tp .193 

What  are  "  Direct  Taxes  "  — 

Ilylton  V.  U.  8 194 

Note     .         .         .         . 195,  196 

Pacific  Lis.  Co.  v.  Soule      .....     195 

Veazie  Bank  v.  Fenno 195 

State  Duties  ox  Imports  — 

Broion  v.  State  of  Maryland 197 

Note 198 

State  Duties  on  "  Exports  "  — 

Almy  V.  State  of  California. 199 

Woodruff  V.  Parham 200 

Note .     200,  201 

States  Cannot  Tax  Federal  Agencies  — 

McCulloch  V.  State  of  Maryland 202 

Dobbins  v.  Commissioner  of  Erie  Co 203 

Weston  V.  City  Council  of  Charleston       ....  203 

Crandall  v.  State  of  Nevada 204 

Note 205 

United  States  Cannot  Tax  State  Agencies  — 

Collector  v.  Day 206 

Note 206,  207 

Warren  v.  Paul '       .         .  207 

Duty  of  Tonnage  — 

Cannon  v.  New  Orleans     .         .         .         ...         .         .  208 

Packet  Co.  v.  Keokuk 208 

Note 209,  210 

St.  Louis  V.  Ferry  Co 210 


XIV  CONTENTS. 


CHAPTER  III.— THE  POWER  TO  BORROW  MONEY. 

PAGE 

Crnig  v.  State  of  Missouri 211 

Briscoe  v.  Bank  of  Kentucky      .         .         .         .         .         .212 

Note 213,  21i 

CHAPTER   IV.  —  THE   POWER  TO   REGULATE   COMMERCE. 

CoMMKKCE  Cannot  be  Regulated  by  the  States  — 

Oibbons  v.  Ogden        .         ...         .         .         .         .         .     215 

The  Passenger  Cases  .         .         .         .         .         .         .         .216 

State  of  Pennsylvania  v.  Wheeling  Bridge  Co.  .         .     217,  218 
Except  as  to  Local  Regulations  — 

Cooley  V.  Port  Wardens 218 

What  is  "  Commerce  "  — 

Paul  V.   Virginia 219 

Note     .' 220,  221,  222 

What  is  Commerce  "Among  "  the  States  — 

Veazie  v.  3Ioor 223 

Note '    .     223,  224 

U.  S.  V.  Dewitt 224 

Commerce  and  the  Police  Power  — 

Thfi  License  Cases       ........     225 

City  of  New  York  v.  Miln  ......     225 

Note 226,  227 

CHAPTER  v.  — PROPERTY  RIGHTS. 

A  Grant  from  the  State  is  a  Contract  — 

Fletcher  v.  Peck 228 

Note 228,  229 

But  not  Public  Offices  — 

Butler  V.  Pennsylvania       .......  230 

Note     ■ 231 

A  License  not  a  Contract  — 

Stone  V.  Mississippi   ........  232 

Note 233 

Charters  to  Private  Corporations  — 

Dartmouth  College  v.  Woodward 234 

Planters  Bank  v.  Sharp     .......  235 

Note 235,  236 


CONTENTS.  XV 

Collateral  Stipulation's  in  Private  Charters  —  ^^^^ 

Gordon  v.  The  Appeal  Tax  Court 237 

Woodruff  V.  Trapnall 238 

-^"^6 '    .         .     239,  240,  241 

Contracts  not  Implied  — 

Charles  Biver  Badge  v.  Warren  Bridge     .         .         .         .242 

^""^^ 242,243 

Municipal  Corporations  — 

East  Hartford  v.  Hartford  Bridge  Co 244 

^^^^ 244,  245 

State  V.  Haben 245 

What  Laws  Impair  the  Obligation  ok  Contracts  —  Insol- 
vent Laws  — 

Sturges  v.  Crowninshield 246 

^'^^^ 246,  247,  248,  249,  250 

Breitenbach  v.  Bash 249 

McCormick  v.  Rush 249 

Laws  in  Force  at   the  Time  of   Contract  — Domicil  of 
Creditor  — 

Ogden  v.  Saunders 251 

Baldwin  v.  Hale         .        .         .         .        ^  2'ii 

^'^^^     •         '. 252,  253 

Statutes  of  Limitation  — 

Terry  v.  Anderson 254 

^'^^^ '         '.         !         :     255 

Abolishing  Imprisomment  for  Debt 

Mason  v.  Haile  .         .  „_„ 

Appraisement  Laws  — 

Bronson  v.  Kinzie 9(57 

Exemption  Laws  — 

Edwards  v.  Kearzy 2go 

^'^^ •  ■    '         :     2(J0,  261 

Eminent  Domain  — 

West  Biver  Bridge  Co.  v.  Dix    ...  26^ 

^''^' '  .'         ■'     262,263 


Xvi  CONTENTS. 

CHAPTER  VI.— THE  POLICE  POWER. 

PAGE 

Protection  of  Public  He.\ltii  — 

The  Slaughter  House  Cases        ......     2G4 

Note 264,   2fi5 

Thorpe  v.  Butland  B.  Co 2«5 

Police  Power  Resides  in  the  States  —  Powers  of  Con- 
gress — 

United  States  v.  Dewitt 266 

Note 266,  267 

Must  not  Conflict  with  National  Rights  — 

Bailroad  Co.\.  Husen 268 

Chy  Lunrj  V.  Freeman 269 

Note 270,  271 

Admission  to  the  Bar  — 

Bradwell  v.  State 272 

Note 272,  273 

Corporations  — 

Paul  V.  Virginia 274 

Intoxicating  Liquors  — 

Bartemeyer  v.  Iowa 27o 

Beer  Co.  v.  Massachusetts       ' 275 

Note  ' 276,  277 

Regulation  of  Railroai'S  — 

Bailroad  Co.  v.  FuUsr       .         .         .■        .         •         •         .278 
Note 279 

Regulation  of  Charges  — 

Peik  V.  Chicago,  etc.,  B.  Co 280 

Chicago,  etc.,  B.  Cq   V.  Iowa 281 

Munn  V.  Illinois 282 

Note 283 

CHAPTER  VII.  — MISCELLANEOUS  CASES. 

"Due  PaocEss  of  Law"— "Law  of  the  Land"  — 

Murray's  Lessee  v.  Ilnhoken  Land  Co 285 

Note 285,  286 


CONTENTS. 


XV. 1 


"Ex  Post  Facto"  Laws  — 

Calcler  v.  Bull     . 

Note      . 

Miles  V.  State 
Band  v.  Com. 
Hart  V.  State 
State  V.  Planning 
State  V.  Corson 
Com.  V.  i7aZ/ 
Dowling  v.  /S^afe 
Stokes  V.  People 
Gut  V.  (S'frtfe 
Kring  v.  Sto^e 

*'  Twice  ix  Jeopardy  "  — 

CT.  ^.  V.  Perez    .... 

iVb«e 

"Cruel  and  Unuslal  ruxisHMEXTs  " 
Wilkerson  v.  Z^tnh 

Note 

Ho  Ah  Koiv  V.  Nunan  . 

b 


.  287 
289,  290 
289 
289 
289 
289 
289 
289 
289 
289 
290 
290 


.  291 
291,  292 


.  293 

293,  294' 
.  294 


TABLE  OF  OASES. 


PAGE 

Ackroyd  v.  Smitlison          .         .         .         .         .         .41 

Aldrich  v.  Cooper 

S2 

Aleyn  v.  Belchier 

113 

Almy  V.  State  of  California 

.     199 

Antrobus  v.  Smith 

9 

Ashburner  v.  Macguire 

.       32 

Arnot  V.  Brown 

154 

Baldwin   v.  Campfield 

16 

Baldwin  v.  Hale 

251 

Ball  V.  Ray         .... 

148 

Barron  /;.  The  Mayor  of  Baltimore 

181 

Bartemeyer  v.  Iowa    . 

275 

Basset  v.  Nosworthy  . 

115 

Beer  Co.  v.  Massachnsetts 

275 

Bland  v.  Mayo  .... 

32 

Blandy  v.  AVidmore    . 

48 

Bostwick  y.  Stiles 

89 

Brad  well  v.  State 

272 

Brady  v.  Weeks 

159 

Braham  v.  Bustard     . 

173 

Breitenbach  v.  Bush  . 

. 

249 

Brice  v.  Stokes  .... 

30 

Briscoe  v.  The  Bank  of  Kentuck}^ 

212 

Broder  v.  Saillard       .... 

146 

Brodie  v.  Barry          .... 

44 

Bronson  v.  Kiiizie       .... 

257 

(xix) 


XX 


TABLE    OF    CASES. 


Brown  v.  Lamphear   . 
Brown  v.  The  State  of  Maryland 
Butler  V.  Pennsylvania 
Buxton  V.  Listei- 

Calder  v.  Bull    . 

Caldwell  v.  YanA'lissengen 

Campbell  v.  Seaman  . 

Cannon  v.  New  Orleans 

Catlin  V.  Valentine     . 

Chancey's  Case  . 

Charlos  River  Bridge  v.  AVarren  Bridge 

Chesterfield  v.  Janssen 

Chicago,  Burlington  and  Qaincj'  R.  C 

Chy  Lung  v.  Freeman 

City  of  New  York  v.  Miln 

Clark  V.  Sewell  . 

Collector  V.  Day 

Com.  ?;.  Gallagher 

Com.  V.  Hall      .  .     •    . 

Cook  V.  Forbes . 

Cooley  V.  The  Port  Wardens 

Cooper  V.  Cooper 

Countess  of  Strathmore  r.  Bowes 

Coventry  v.  Chichester 

Craig  V.  The  State  of  Missouri 

Cranilall  v.  The  State  of  Nevad 

Croft  V.  Day 

Cuddee  v.  Rutter 

Dartmouth  College  v.  Woodward 

Dennis  v.  Eckhardt    . 

Dering  v.  Earl  of  Winchelsea     . 

DeWitt  V.  Yates, 

Dobbins  v.  Commissioners  of  Erie  Co 


Iowa 


FAGE 

99 
197 
230 
120 

287 
164 
140 
208 
153 

62 
242 
104 
281 
269 
225 

56 
206 
163 
289 
158 
218 

45 
111 

58 
211 
204 
170 
116 

234 

157 

71 

56 

203 


TABLE    OF    CASES. 


XXI 


Dodson  V.  Swan  ... 

Dowling  V.  State 
Dudley  v.  Bachelder  . 
<  Duke  of  Ancaster  v.  Mayer 
Duke  of  Somerset  v.  Cookson     . 
Duucuft  V.  Albrecht  . 
Dyer  v.  Dyer     .... 

A  Earl  of  Oxford's  Case 

East  Hartford  v.  Hartford  Bridge  Co 

Edwards  v.  Jones 

Edwards  v.  Kearzy 
'    Elliot  V.  Merry  man 

Ellison  V.  Ellison 

Fells  V.  Reed 
Fletcher  v.  Ashburner 
Fletcher  v.  Peck 
Flint  V.  Russell . 
Folsom  V.  Marsh 
Ar  Fox  V.  Mackreth 

Gibbons  v.  Ogden 

Glenny  v.  Smith 

Gordon  v.  Gordon 

Gordon  v.  The  Appeal  Tax  Court 

Gourley  v.  Linsenbigler 

Greene  v.  Greene 

Gut  V.  State        .... 

Hamilton  v.  Whitridge 
/      Harding  v.  Glyn 

Harrison  v.  St.  Mark's  Church  . 
Hart  V.  State  .... 
Hawkins  v.  Blewett    . 


PAGE 

125 

289 

1.5 

59 

118 

119 

14 

130 
244 

37 
260 

27 


119 
39 
228 
155 
1(57 
25 

215 

17(3 
96 

237 
37 
12 

290 

138 

11 

145 

289 
38 


XXll 


TABLE    OF    CASES. 


Ho  Ah  Kow  V.  Nunaii 
Hooley  v.  Hattou 
Huguenin  v.  Baseley 
Hunt  V.  Rousmaniere 
Hyltou  V.  United  States 

Jackson  v.  Phillips     . 

Jaqnes  v.  Methodist  Episcopal  Church 

Jones  V.  Lewis  . 

Jones  V.  Selby  . 

Keecli  V.  Sandford 
Kring  v.  State    . 

Lake  v.  Craddock 
Lake  v.  Gibson  , 
Lansdowne  v.  Lansdowne  . 
Lady  Elihauk  v.  Moutolieu 
Lawrence  v.  Lawrence 
Lechmere  v.  Earl  of  Carlisle 
Lester  v.  Foxcroft 
License  Cases,  The     . 
Loan  Association  v.  To[  eka 
Lord  Glenorchy  v.  Bosville 
Lowell  I'.  Boston 

Maekreth  v.  Symmons 

Maddox  v.  Maddox    .  .    • 

Manby  v.  Scott  . 

Marine  Ins.  Co.  v.  Hodgson 

Martin  v.  Hunter's  Lessee  . 

Marti netti  v.  Maguire 

Mason  v.  Haile  . 

Mayor  of  Gloucester  v.  AVood 

Maxwell  v.   Hogg 


PAGE 

294 

53 

107 

94 

.  194 

20 

77. 
92 
37 

24 

290 

66 

66 

95 

73 

82 

50 

121 

225 

192 

6 

193 

22 

102 
75 
129 
186 
1G8 
256 
18 
172 


TABLE    OF    CASES. 


XXIU 


Meneely  v.  Meneely  .... 

Methodist  Episcopal  C'hurcli  v.  Jaques 

Miles  V.  State     .... 

Moore  v.  Dartoii 

Morle}^  V.  Bird  .... 

Munn  V.  Illinois 

Murray  v.  Lord  Elibaiik     . 

Murray'' s  Lessee  v.  Hoboken  Land  Co 

McAndrew  v.  Basset . 

MeCormick  v.  Rush   . 

MeCuUoch  v.  The  State  of  Maryland 

Nevill  V.  Snellino; 


Ogden  V.  Saunders 
Oliver  v.  Brickland     . 

Pacific  Ins.  Co.  v.  Soule     . 

Packet  Co.  v.  Keokuk 

Passenger  Cases,  The 

Paul  V.  Virginia 

Peachey  v.  Duke  of  Somerset 

Peck  V.  Edler    . 

Peik  I'.  Chicago,  etc.,  R.  Co. 

Penn  v.  Lord  Baltimore 

Phillips  I'.  Berger 

Planters  Bank  v.  Sharp 

Pool  V.  Coleman 

Prince  Albert  v.  Strange     . 

Providence  Bank  v.  Billings 

Pusey  I'.  Pusej' . 

Pye,  Ex  parte    . 

Railroad  Company  v.  Fuller 
Railroad  Company  c.  Husen 


r\GK 
174 

77 
289 

37 

G6 
282 

74 

284 

172 

249 

185,  202 

.      105 


251 

49 

195 
208 
216" 
274 

G9 
142 
280 
127 
119 
235 
149 
167 
188 
118 

54 

278 
26& 


219, 


XXIV 


TABLE    OF    CASES. 


Rand  v.  Commonwealth 
Richards  v.  Delbridge 
Robinson  v.  Pett 
Ross  V.  Butler  . 
Russell  V.  Russell 

Sale  V.  Moore    . 

Seabury  v.  Grosvenor 

Seton  V.  Slade   . 

Sexton  V.  Wheaton     . 

Shelley's  Case    , 

Slaughter  House  Cases,  The 

Sloraan  v.  Walter 

Smith  V.  Lampton 

Smith  V.  Phillips 

Sneckner  v.  Ta^-lor     . 

Soltau  iJ.  De  Held 

St.  Helen's  Smelting  Co.  v.  Tipping 

St.  Louis  V.  The  Ferry  Co 

State  V.  Corson  . 

State  V.  Haben   . 

State  V.  Manning 

State  V.  Osawkee  T[).  . 

State  of  Pennsylvania  v.  Wheeling  Br 

Stapleton  v.  Stapleton 

Steward  v.  Winters    . 

Stokes  V.  People 

Stone  V.  Mississippi    . 

Strong  V.  Williams     . 

Sturges  V.  Crowninshield 

Tall)ot  V.  Duke  of  Shrewsbury 
Taylor  v.  Pugh  . 
Terry  v.  Anderson     . 
Thorpe  v.  Rutland,  etc.,  R.  Co. 


19] 


idfife 


Co. 


21: 


PAGE 

289 
10 
26 

162 
64 

13 

171 

121 

109 

4 

264 

68 

33 

160 

38 

143 

135 

210 

289 

245 

289 

193 

218 

132 

289 

232 

33 

246 

52 
112 
254 
265 


TABLE    OF    CASES. 


XXV 


PAGE 

Toilet  V.  Toilet 

.       86 

Townley  v.  Sherborne         .        ' . 

29 

Tullett  V.  Armstrong  ...... 

.       80 

Tyrrel's  Case • 

1 

Tyson  v.  Tyson          ...... 

97 

United  States  i'.  Dewitt      ,          .          *         .          . 

224,   206 

United  States  v.  Perez 

.     291 

Vcazie  v.  Moor  ....... 

223 ' 

Veazie  Bank  v.  Fenno         .          .          .         .          . 

.      196 

Wadsworth  v.  Wendell        .... 

8 

Walter  v.  Selfe 

.      156 

y:;^Ward  v.  Turner          .         .         .         .         . 

.       36 

Warren  v.  Paul  ...... 

.     207 

West  River  Bridge  Co.  v.  Dix 

.     262 

Westby  v.  Westby 

.       98 

Weston  V.  City  Council  of  Charleston 

.     203 

Wilbanks  v.  Wilbanks         .... 

.       44 

a^   Wilcocks  I'.  Wilcocks          .... 

.       48 

Wilkerson  v.  Utah       ..... 

.     293 

Withers  v.  Yeadon      ..... 

.       88 

Woodruff  V.  Parham  ..... 

.     200 

Woodruff  V.  Trapnall          .... 

.     238 

X  Woollam  v.  Henrn      .          .          .          . 

.      122 

Wynne  v.  Hawkins     ..... 

12 

Yallop,  Ex  parte         ..... 

16 

Young  V.  Macrae        .          .          . 

.      172 

PART     I. 


Equity  Cases  Simplified. 


EQUITY   CASES    SI 


USES  AND  TRUSTS. 


TYRREL'S   CASE. 

[Dyer,  155a.] 

Jane  Tyrrel,  widow,  was  the  heroine  of  this  impor- 
tant case.  The  facts  need  not  be  given  here,  for  it  is 
sufficient  for  the  student  to  remember  only  the  impor- 
tant principle  it  decides,  which  is  stated  in  nine  words, 
and  shall  be  written  in  large  capitals,  viz. :  THERE 
CAN  NOT  BE  A  USE  UPON  A  USE. 

Previous  to  the  reign  of  Heury  VIII.,  when  a  very  important  law 
called  the  Statute  of  Uses  was  passed,  a  method  of  transferring  an 
estate  had  sprung  up  having  peculiar  features,  but  grounded  on 
very  practical  reasons.  The  Statutes  of  Mortmain  had  prohibited 
lands  from  being  given  for  religious  purposes.  To  evade  these 
statutes,  the  lawyers  of  that  day  devised  the  method  of  taking 
grants  to  third  persons  to  the  use  of  the  religious  bodies.  This 
ruse  was  very  successful,  and  became  very  popular.  Rebellions 
were  the  order  of  the  day  about  that  time,  and  somebody  was  being 
beheaded  and  having  his  estate  forfeited  once  or  twice  a  week. 
When  it  was  found  that  the  use,  unlike  the  estate,  was  not  liable  to 

(1) 


2  EQUITY    CASES    SIMPLIFIED. 

be  forfeited  for  treason,  ev^erybody  that  had  land  went  into  the  busi- 
ness of  having  his  property^xed  in  this  way.  B.  wished  to  obtain 
a  certain  piece  of  land.  Instead  of  having  it  deeded  to  himself,  he 
had  the  document  p.urj^rt  to  convey  it  to  C.  for  the  use  of  B. 
Thus  C.  held'tbe  legaUestate,  and  with  C.  alone  could  the  courts  deal 
at  all.  ,^ 

It  wasrl^ht^ere  that  the  chancellor,  the  forerunner  of  our  mod- 
ern "courts^pf  chancery,  took  a  hand  in  the  game.  The  chancellor 
w^  the  keeper  of  the  king's  conscience,  and  what  he  didn't  know 
ffbcftit  conscience  wasn't  worth  knowing.  So,  in  the  case  just  put,  he 
-'decided  that  this  declaration  of  use  charged  the  conscience  of  C, 
and  C.  held  the  land  in  trust  for  B.,  and  he,  the  chancellor,  would 
protect  this  trust  estate  in  the  hands  of  C.  for  the  benefit  of  B. 

Hence  arose  the  doctrine  of  Trusts.  The  courts  of  law  had  no 
jurisdiction  in  such  matters,  and  the  chancellor  had  plenty  to  do. 
Presently,  however,  another  player  came  into  the  game,  viz. :  Par- 
liament, and,  by  enacting  the  celebrated  Statute  of  Uses,  seemed 
for  a  time  to  have  got  the  chancellor's  head  in  chancery.  This 
statute  (27  Henry  VIII.,  ch.  10,)  provided  that  where  any  persons 
should  stand.seised  of  any  hereditaments  to  the  use,  confidence,  or 
trust  of  any  other  persons,  etc.,  the  persons,  etc.,  who  had  any 
such  use,  confidence,  or  trust  should  be  deemed  in  lawful  seisin  and 
possession  of  the  same  hereditaments  for  such  estates  as  they  had 
in  the  use,  trust,  or  confidence.  This  seemed  to  be  a  finisher;  it 
was  intended  to  extirpate  the  whole  doctrine  of  uses  and  trusts. 
But  the  decision  of  the  common  law  judges  in  Tyrrel's  case  com- 
pletely nullified  it.  This  case  decided  that  there  could  be  no  use 
upon  a  use,  i.e.,  if  land  was  conveyed  to  A.,  to  the  use  of  B.  to  the 
use  of  C,  the  statute  would  execute  the  first  use  and  carry  the  legal 
title  to  B.,  but  that  it  could  not  go  as  far  as  C.  Then  the  chancellor 
came  into  the  game  again,  and  declared  that  in  such  a  case  B.  held 
the  land  in  trust  for  C,  and  he  would  take  care  of  C.'s  estate  as  of 
old.  So,  as  remarked  by  an  able  writer,  the  statute,  so  far  from 
affecting  its  object,  gave  a  fresh  stimulus  to  the  system  it  was  in- 
tended to  destroy.  After  the  decision  in  Tyrrel's  case,  and  the 
chancellor  again  stepped  in,  the  equitable  doctrine  of  trusts  became 
permanent. 

Another  important  statute  affecting  trusts  is  the  Statute  of 
Frauds,  passed  in  the  twenty-ninth  year  of  the  reign  of  Charles  II. 
By  sect.  3  of  that  act  trusts  must  be  declared  or  assigned  in  writ- 
ing. But  implied  trusts  do  not  fall  within  this  statute.  Its  provi- 
sions have  been  adopted  in  nearly  all  the  States. 


EQUITY    CASES    SIMPLIFIED.  6 

Definition  of  Tnists  —A  trust  is  the  beneficial  title  or  ownership 
of  property  to  which  the  legal  title  is  in  another.  The  person  in 
whom  the  legal  title  is  vested  is  called  the  trustee,  and  the  person 
for  whose  benefit  the  trust  exists  is  called  the  cestui  que  trust. 


<• 


EQUITY    CASES    SIMPLIFIED. 


SHELLEY'S   CASE. 

[1  Co.  93b.] 

This  (the  pons  asinorum  of  the  student),  like  Tyr- 
rel's  case,  is  more  important  for  its  results  than  for 
its  facts.  The  principle  which  it  announced  was  that 
where  the  ancestor  takes  an  estate  of  freehold,  and  in 
the  same  gift  or  conveyance  an  estate  is  limited,  either 
mediately  or  immediately,  to  his  heirs  or  the  heirs  of 
his  body,  the  word  "heirs"  is  a  word  of  limitation, 
and  not  of  purchase  ;  so  that  the  ancestor  takes  the 
whole  estate  comprised  in  the  term  ;  that  is  to  say,  in 
the  first  case,  an  estate  in  fee  simple  ;  in  the  second,  an 
estate  in  fee  tail. 

This  is  the  language  in  which  a  lawyer  (if  you  ask  him  and  do 
not  forget  his  fee)  will  generally  relate  to  you  the  rule  in  Shelley's 
Case.  The  meaning  of  the  rule  is  simple  enough,  viz. :  that  where 
there  is  a  gift  to  a  person  and  his  heirs,  or  the  heirs  of  his  body,  it 
is  not  to  be  taken  as  conferring  any  estate  on  the  heir,  but  simply 
showing  or  marking  out  the  estate  that  the  ancestor  takes.  Thus 
an  estate  is  given  to  A.  for  life,  and  remainder  to  his  heirs  in  fee 
simple,  this  means  simply  that  A.  has  an  estate  in  fee  simple,  and 
his  heirs  take  nothing  by  the  conveyance  itself. 

The  "  rule  in  Shelley's  Case  "  applies  to  equitable  as  well  as  legal 
estates  (except  in  case  of  executory  trusts,  for  which  see  Lord 
Glenorchy  v.  Bosville,  the  next  case)  ;  but  where  one  limitation  is 
legal,  and  the  other  equitable,  it  does  not  apply.  Thus  a  grant  unto 
and  to  the  use  of  A.  for  life,  with  remainder  to  the  heirs,  or  heirs 
of  the  body,  of  A.  gives  A.  a  fee  simple  or  fee  tail,  as  the  case  may 
be,  and  if  an  intermediate  estate  to  a  third  party  were  given  after 
the  life  estate  to  A.,  and  before  the  limitation  to  his  heirs  or  heirs 


EQUITY    CASES    SIMPLIFIED.  5 

of  the  body,  the  result  would  be  the  same,  subject  to  the  interven- 
ing estate  ;  but  if  the  grant  is  unto  and  to  the  use  of  A.  for  life, 
with  remainder  to  the  use  of  B.  and  his  heirs  in  trust,  for  the  heirs 
or  heirs  of  the  body  of  A.,  here  A.  would  take  but  a  life  estate  and 
his  heirs  or  heirs  of  the  body  would  take  as  purchasers. 

So  the  rule  applies,  although  there  may  be  an  intervening  estate 
between  the  gift  of  freehold  to  the  ancestor  and  the  subsequent 
limitation  to  the  heir;  thus,  if  an  estate  is  limited  to  A.  for  life, 
and  after  liis  decease  to  B.  for  life,  and  then  to  the  heirs  of  A., 
here  A.  takes  a  fee  simple  subject  to  the  intervening  estate  for  life 
to  B.  The  rule  is  of  very  ancient  origin.  ludermaur  Ld.  Cas. 
Eq.  25. 


EQUITY    CASES    SIMPLIFIED. 


EXECUTED  AND  EXE C  UTOR  Y  TR  US TS  — 
''EQUITY  FOLL O WS  THE  LA W. ' ' 


LORD   GLENORCHY   v.   BOSVILLE. 

[Cas.  Temp.  Talbot,  3;  1  Wh.  &  Tud.  Ld.  Cas.  Eq.  1.] 

Sir  Thomas  Pershall,  a  well-to-do  knight  of  the  eigh- 
teenth century,  sat  down  one  day  and  made  his  wilL 
In  this  document  he  devised  the  bulk  of  his  real  es- 
tate to  trustees,  to  hold  in  trust  until  the  marriage 
of  his  granddaughter,  Arabella,  and  when  that  event 
came  to  pass,  they  were  to  convey  it  to  the  use 
of  Arabella  for  life,  remainder  to  her  husband  for 
life,  remainder  to  the  issue  of  her  body,  with  remain- 
der over.  In  due  course  of  time  Arabella  married 
Lord  Glenorchy,  but  the  trustees  (Bosville  being  one 
of  them)  refused  to  turn  over  the  property,  and  she 
and  her  husband  were  compelled  to  ask  the  aid  of  the 
Court  of  Chancery  in  the  matter.  Here  the  question 
at  once  arose,  was  not  Arabella  entitled,  under  the 
will,  to  have  conveyed  to  her,  an  estate  in  tail,  accord- 
ing to  the  rule  in  Shelley's  Case,  and  would  the  Court 
of  Chancery  follow  the  rule  of  law  on  this  subject,  and 
order  Bosville  and  his  fellow  trustees  to  convey  this 
kind  of  an  estate?  But  the  court  said  no  to  this 
question. 

"I  think,"   said  the  Lord  Chancellor,  "incases  of 


EQUITY    CASES    SIMPLIFIED.  7 

trusts  executed  or  immediate  devises,  the  construction 
of  the  courts  of  law  and  equity  ought  to  be  the  same  ; 
for  there  the  testator  does  not  suppose  any  other  con- 
veyance will  be  made.  But  in  executory  trusts  he 
leaves  somewhat  to  be  done  ;  the  trusts  to  be  executed 
in  a  more  careful  and  more  accurate  manner." 

And  the  court  was  of  opinion  that  a  conveyance 
to  Arabella  for  life,  remainder  to  her  husband  for  life, 
remainder  to  their  first  and  every  other  son,  remainder 
to  their  daughter,  would  best  carry  out  the  testator's 
intention  ;  and  so  they  ordered  this  to  be  done. 

This  is  the  leading  case,  showing  the  distinction  between  txe- 
cuted  and  executory  trusts.  An  executed  trust  is  one  wliere  no 
act  is  necessary  to  be  done  to  give  effect  to  it,  the  trust  being 
finally  declared  by  the  instrument  creating  it.  An  executory  trust  is 
where  the  instrument  creating  the  trust  is  intended  to  be  pro- 
visional only,  and  further  conveyances  are  required  to  effectually 
carry  it  out.  The  test,  as  well  put  by  an  eminent  judge, is  this: 
Has  the  testator  been  his  own  conveyancer,  or  has  he  left  some- 
thing to  be  done?  If  the  former,  it  is  an  executed  trust;  if  the  lat- 
ter, it  is  an  executory  one.  Now,  Sir  Thomas  Pershall  had  clearly 
left  something  to  be  done,  for  before  Arabella  could  get  her  prop- 
erty the  trustees  had  to  convey  it  to  her. 

The  case  also  illustrates  the  maxim,  "  Equity  follows  the  law." 
Equity  applies  the  rules  of  law  to  equitable  titles  and  interests 
very  often,  but  not  always.  In  the  case  of  executed  trusts  it  does; 
in  the  case  of  executory  trusts  it  does  not. 


EQUITY   CASES   SIMPLIFIED. 


IMPERFECT  CONVEYANCE   MAY  CONSTITUTE 
A  TRUST. 


WADS  WORTH  v.   WENDELL. 

[5  Johns.  Ch.  224.] 

A  soldier  in  the  Revolutionuiy  War  was  entitled, 
by  virtue  of  his  patriotic  services,  to  a  grant  of 
six  hundred  acres  of  land  in  New  York  State.  He 
sold  the  land  to  Mr.  Wadsworth,  and  undertook  to 
make  him  a  deed  of  it.  But  the  veteran  was  not  a 
good  conveyancer,  and  though  the  instrument  con- 
cluded, "  in  witness  whereof  I  set  my  hand  and  seal," 
he  forgot  entirely  to  put  on  the  seal.  Notwithstand- 
ing that  this  informality  was  fatal  to  the  legal  transfer 
of  the  property,  the  court  held  that  it  raised  a  trust  in 
favon  of  Wadsworth,  and  the  old  soldier's  assignees 
were  ordered  to  convey  it  to  him,  although  they  had 
subsequently  purchased  the  same  property  themselves. 

Courts  of  equity  are  not  very  strict  in  requiring  the  settlor  to 
follow  any  particular  forms  of  expression.  He  need  not  even  use  the 
words  "  trust  "  and  "  trustee."  Where  the  agreement  is  founded 
on  a  valuable  consideration,  the  court  will  enforce  the  trust,  al- 
though it  is  not  perfectly  created ;  and,  although  the  instrument 
does  not  pass  the  title  to  the  property,  if,  from  the  document,  the 
court  can  make  out  the  terms  and  conditions  of  the  trust,  and  the 
party  to  be  benefited. 

Where  the  settlor  has  attempted  to  make  a  voluntary  disposition 
of  his  property,  the  rule,  however,  is  different.    Ellison  v.  Ellison, 


EQUITY   CASES    SIMPLIFIED.  V 

6  Ves.  65G;  1  Wh.  &  Tud.  Ld.  Cas.  Eq.  27;^,  is  the  leading  English 
case  on  this  point.  In  that  case  Lord  Chancellor  Eldon  said :  "I 
take  the  distinction  to  be,  that  if  you  want  the  assistance  of  the 
court  to  constitute  you  cestui  que  trust,  and  the  instrument  is  vol- 
untary, you  shall  not  have  that  assistance  for  the  purpose  of  con- 
stituting 3-ou  cestui  que  trust;  as  upon  a  covenant  to  transfer 
stock,  etc.,  if  it  rests  in  covenant,  and  is  purely  voluntary, 
this  court  will  not  execute  that  voluntary  covenant.  But  if  the 
party  has  completely  transferred  stock,  etc.,  though  it  is  volun- 
tary, yet  the  legal  conveyance  being  effectually  made,  the  equit- 
able interest  will  be  enforced  by  this  court."  Therefore,  where 
a  settlor  actually  constitutes  himself  a  trustee  for  volunteers,  a 
court  of  equity  will  enforce  the  trusts  declared;  as  if  he  simply 
declares  himself  to  be  a  trustee  of  the  property  for  another,  a  com- 
plete trust  is  created  and  the  court  will  act  upon  it. 

But  informally  attempting  to  dispose  of  an  interest  (as  in  the 
soldier's  case  above)  will  not,  if  the  donee  be  a  volunteer,  (i.e., 
one  who  pays  nothing  for  the  property,  but  gets  it  as  a  gift)  consti- 
tute a  trust  for  him.  In  an  English  case,  Mr.  Crauford  made  the 
following  iudorsement  upon  a  receipt  for  a  subscription  in  the 
Forth  and  Clyde  Navigation  Company:  "  I  do  hereby  assign  to  ray 
daughter,  Anna  Crauford,  all  my  right,  title  and  interest  of,  and  in. 
the  enclosed  call,  and  all  other  calls  of  my  subscription  in  the  Clyde 
and  Forth  Navigation."  This  was  no  complete  legal  assignment, 
but  it  was  attempted  to  be  argued  that  the  father  meant  to  make 
himself  a  trustee  for  his  daughter  of  these  shares.  It  was,  how- 
ever, held  that  there  was  no  trust  created,  the  Master  of  the  Rolls 
saying:  "Mr.  Crauford  was  no  otherwise  a  trustee  than  as  any 
man  may  be  called  so  who  professes  to  give  property  by  an  instru- 
ment incapable  of  conveying  it.  He  was  not  in  form  declared  a 
trustee,  nor  was  that  mode  of  doing  what  he  proposed  in  his  con- 
templation. He  meant  a  gift.  He  says  he  as^gns  the  property. 
But  it  was  a  gift  not  complete.  The  property  was  not  transferred 
by  the  act.  Could  he  himself  have  been  compelled  to  give  effect  to 
the  gift  by  making  an  assignment?  There  is  no  case  in  which  a 
party  has  been  compelled  to  perfect  a  gift,  which  in  the  mode  of 
making  it,  he  has  left  imperfect.  There  is  a  locus  pcenitentice  as 
long  as  it  is  incomplete."  Autrobus  v.  Smith,  12  Ves.  39.  In  an- 
other recent  case,  the  greatest  chancery  judge  of  his  day,  Jessel, 
M.  R.,  thus  summed  up  the  law  on  this  subject:  "  The  principle  is  a 
very  clear  one.  A  man  may  transfer  his  property  without  valuable 
consideration  in  one  of  two  ways :  he  may  either  do  such  acts  as 


10  EQUITY    CASES    SIMPLIFIED. 

amount  in  law  to  a  conveyance  or  assignment  of  the  propertj^,  and 
thus  completely  divest  himself  of  the  legal  ownership,  in  which 
case  the  person  who,  by  those  acts,  acquires  the  property  takes  it 
beneficially,  or  on  trust,  as  the  case  may  be ;  or  the  legal  owner  of 
the  property  may,  by  one  or  other  of  the  modes  recognized  as 
amounting  to  a  valid  declaration  of  trust,  constitute  himself  a 
trustee,  and  without  an  actual  transfer  of  the  legal  title,  may  so 
deal  with  the  property  as  to  deprive  himself  of  its  beneficial  owner- 
ship, and  declare  that  he  will  hold  it  from  that  time  forward  in 
trust  for  the  other  person.  It  is  true  he  need  not  use  the  words, 
'I  declare  myself  a  trustee,'  but  he  must  do  something  which  is 
equivalent  to  it,  and  use  expressions  which  have  that  meaning;  for 
however  anxious  the  court  may  be  to  carry  out  a  man's  intention, 
it  is  not  at  liberty  to  construe  words  otherwise  than  according  to 
their  proper  meaning.  *  *  *  The  true  distinction  appears  to 
me  to  be  plain  and  beyond  dispute ;  for  a  man  to  make  himself  a 
trustee,  there  must  be  an  expression  of  intention  to  become  a 
trustee,  whereas  words  of  present  gift  show  an  intention  to  give  over 
property  to  another,  and  not  to  retain  it  in  the  donor's  own  hands 
for  any  purpose,  fiduciary  or  otherwise."  Richards  v.  Delbridge,  L. 
K.  18  Eq.  GSG. 

In  the  absence  of  an  express  power  of  revocation  in  the  instru- 
ment itself,  a  conveyance  or  declaration  of  trust  in  favor  of  a  vol- 
unteer cannot  be  revoked  or  avoided,  except  in  the  case  of  an 
assignment  of  property  in  trust  for  creditors  Avhich  is  revocable 
until  the  creditors  have  assented  to  it. 


EQUITY   CASES    SIMPLIFIED.  11 


PRECATORY  TRUSTS. 


HARDING  V.    GLYN. 

[1  Atk.  40!);  2  Wh.  &  Tud.  Ld.  Cas.  Eq.  946.] 

Nicholas  Harding,  by  his  will,  gave  all  his  personal 
property  to  his  wife,  but  did  desire  her,  at  or  before 
her  death,  to  give  the  same  unto  and  amongst  such  of 
his  own  relations  as  she  should  think  most  deserving 
and  approve  of.  The  student  will  note  that  Nicholas 
did  not  expressly  require  Mrs.  H.  to  dispose  of  his 
property  according  to  his  wish,  he  simp'y  desired  her 
to  do  so.  Yet  the  court  held  that  the  wife  was  only 
intended  to  take  beneficially  during  her  life,  and  that  so 
much  of  the  property  not  disposed  of  among  his  rela- 
tions, should  be  divided  equally  amongst  such  of  the 
relatives  of  the  testator  as  were  his  next  of  kin  at  the 
time  of  his  wife's  death.  "  The  Avords  '  willing  or  de- 
siring,' "  said  the  court,  "  have  been  frequently  held 
to  amount  to  a  trust." 

When  property  is  given  absolutely  to  any  person,  and  the  same 
person  is  by  the  giver,  recommended,  desired,  or  entreated  to  dis- 
pose of  it  in  favor  of  another,  such  recommendation,  wish,  or  en- 
treaty is  held  to  create  a  trust,  as  though  he  had  commanded  the 
thing  to  be  done.  Such  trusts  are  known  to  lawyers  as  precatory 
trusts.  They  come  properly  under  the  definition  of  express  trusts, 
these  being  defined  as  trusts  clearly  expressed  by  the  author  or 
creator,  or  capable  of  being  fairly  collected  from  a  written  docu- 
ment.    They  cannot,   of  course,  be   said  to  be  clearly  expressed, 


12  EQUITY    CASES    SIMPLIFIED. 

but  yet  on  a  correct  interpretation  of  the  whole  instrument  they 
may  fairly  be  collected  from  it. 

The  recommendatidu,  entreaty,  or  wish  will  be  held  not  to 
create  a  trust. 

1 .  IVhere  the  words  are  so  used  that  on  the  whole  they  ought  not  to  be 
construed  as  imperative.  —  The  wish  of  the  testator  should  be  re- 
f?arded  as  a  command,  if  possible.  The  words  in  Mr.  Harding's 
will  made  it  clear  that  he  intended  her  to  take  only  during  her  life, 
and  so  a  trust  was  enforced  by  the  court.  But  if  the  giver  accom- 
panies his  expression  of  a  wish  or  desire  by  words  which  show 
that  he  did  not  intend  it  to  be  imperative,  or  did  intend  that  the 
first  taker  was  to  have  a  discretionary  power  in  the  matter,  then  no 
trust  will  be  enforced.  An  Irish  gentleman  of  the  name  of  Greene, 
some  fifteen  years  ago,  made  a  will  in  these  words :  "  I  give  and  be- 
queath all  my  property  to  my  dearly  beloved  wife,  Lydia,  well 
knowing  her  sense  of  justice  and  love  to  her  family,  and  feeling 
perfect  confidence  that  she  will  manage  same  to  the  best  advantage 
for  the  benefit  of  her  children."  The  court  held  that  this  will  did 
not  create  a  precatory  trust  for  the  children,  but  that  Lydia  took 
all  the  property  absolutely,  for  the  document  gave  her  "  that  dis- 
cretionary power  which  cannot  co-exist  in  the  smallest  measure 
with  the  creation  of  a  precatory  trust."  Greene  v.  Greene,  3  Ir. 
Rep.  (L.)  90,  G2'J. 

2.  Where  the  subject  of  the  recommendation  or  wish  is  uncertain.  — 
The  grandfather  of  William  Wynne,  in  the  year  1773,  left  his  prop- 
erty by  will  to  his  wife,  "  not  doubting  but  that  she  will  dispose  of 
lohat  shall  be  left  at  her  death,  to  our  grandchildren."  When  grand- 
mother Wynne  died,  William  filed  a  bill  against  her  personal  repre- 
sentative to  recover  what  was  left;  but,  unfortunately  for  him,  his 
bill  was  dismissed.  "  If  the  intention  is  clear  what  was  to  be 
given,"  said  the  Lord  Chancellor,  "and  to  whom,  I  should  thinkthe 
words  not  doubting,  would  be  strong  enough  to  create  a  trust. 
But  where  it  is  uncertain  lohat  property  loas  to  be  given,  the  words  are 
not  suflicieut."     Wynne  v.  Hawkins,  1  Bro.  C.  C.  179. 

3.  Where  the  objects  or  persons  intended  to  have  the  benefit  of  the 
recommendation  or  loish  are  also  uncertain.  —  One  Edward  Moore, 
clerk,  made  a  will  which  illustrates  this  rule.  He  bequeathed  all 
his  worldly  goods  to  his  wife,  Mary,  recommending  to  her,  and  not 
doubting  that  she  would  consider  his  near  relations,  as  he  would 
have  done  if  he  had  survived  her.  But  the  court  held  that  Ed- 
ward's brothers  and  sisters,  though  his  only  next  of  kin,  took  noth- 
ing by  the  will,  for  the  words  "near  relations,"  were  too  vague 


EQUITY    CASES    SIMPLIFIED.  13 

and  uncertain  to  create  a  trust.  "Supposing,"  said  tlie  court 
"that  the  words  in  this  case  would  create  a  trust,  tbose  words  are 
coupled  with  some  degree  of  uncertainty.  Who  are  the  objects  of 
tlie  trust?  Uidthe  testator  mean  relations  at  his  own  death  or  at 
his  wife's  death?  Did  he  mean  that  she  sliould  have  the  liberty  of 
executing  the  trust  the  day  after  his  death?  Various  other  consid- 
erations might  be  introduced  to  show  that  the  objects  are  uncer- 
tain."    Sale  V.  Moore,  1  Sim.  535. 


14  EQUITY   CASES    SIMPLIFIED 


RESULTING  TRUSTS  —  PARTY  PAYING  PUR- 
CHASE MONEY—  ADVANCEMENT. 


DYER  V.  DYER. 

[2  Cox  Ch.  92;   1  Wh.  &  Tud.  Ld.  Cas.  Eq.  203.] 

Simon  Dyer  paid  the  purchase  money  for  some 
property  in  the  county  of  Wilts,  and  had  the  deed 
made  to  himself,  his  wife  Mar}^  and  his  son  "William, 
jointly.  The  effect  of  this  kind  of  a  conveyance  was 
that  when  one  of  the  three  died,  the  two  survivors 
took  his  share,  and  when  another  died, the  lonjrest  liver 
got  the  whole.  Mrs.  Dyer  died  first,  and  then  Simon 
went  over  to  the  majority,  but  not  l)efore  he  had  made 
a  will  devising  all  his  interest  in  the  premises  to  the 
plaintiff.  William  very  naturally  considered  all  the 
property  to  be  his  own,  but  the  plaiiitilf  insisted  that 
as  the  purchase  money  was  all  paid  by  Simon  Dyer, 
William  was  only  a  trustee,  and  although  the  legal  estate 
was  in  William,  the  equitable  title  to  the  property  Avas 
in  his  father,  and  devolved,  therefore,  under  the  will, 
upon  the  plaintiff. 

But  the  court  held  that  though,  if  no  relationship 
had  existed,  there  would  be  a  resulting  trust  in  favor  of 
the  person  paying  the  purchase  money  ;  yet  the  cir- 
cumstance of  William  being  the  child  of  the  purchaser, 


EQUITY    CASES    SIMPLIFIEi>.  15 

operated  to  rebut  the  resulting  trust,  and  William  took 
the  property  beneficially  as  an  advancement  from  the 
father. 

The  general  rule  on  this  subject  is  that  if  a  person  purchases 
property  with  his  own  money,  and  the  deed  is  taken  in  the  name  of 
anotlier,  the  latter  holds  the  land  in  trust  by  implication  of  law, 
and  without  any  agreement,  for  him  whose  money  has  paid  for 
it.  The  reason  of  this  doctrine  is  that  the  man  who  pays  the  pur- 
chase money  is  supposed  to  intend  to  become  the  owner  of  the 
property,  and  the  beneficial  title  follows  this  supposed  intention. 

But  a  resulting  trust  will  not  arise. 

1.  JVJiere  the  purchase  money  is  paid  by  the  parent,  and  the  con- 
veyance is  taken  in  the  name  of  the  child.  —  Plere  the  presumption 
of  a  trust  is  rebutted  by  the  supposed  intention  of  the  parent  to 
benefit  the  child;  and  the  latter  is  held  to  take  the  property  benefi- 
cially as  an  advancement.  Dyer  v.  Dyer  illustrates  this  exception. 
It  should  be  noted  that  this  exception  applies  to  other  relations 
than  those  of  parent  and  child  —  it  applies  wherever  the  person 
stands  in  loco  parentis  to  the  party  benefited — as  the  case  of 
grandfather  and  grandchild,  mother  and  daughter,  husband  and 
wife,  and  the  like. 

2.  Where  the  money  is  not  paid  at  the  time  of  the  purchase.  —  A  pay- 
ment made  subsequently  to  the  purchase  cannot  raise  a  trust.  Dud- 
ley V.  Bachelder,  53  Me.  -103. 

3.  Where  the  money  is  not  advanced  by  the  party  in  the  character  of 
a  purchaser.  —  As  if  one  pay  the  purchase  money  by  way  of  loan  for 
another,  and  the  conveyance  is  taken  to  the  other,  no  trust  will  re- 
sult to  the  one  who  thus  pays  the  purchase  money.  Perry  on  Trusts, 
sect.  133. 

4.  Where  the  transaction  contravenes  a  statute  or  public  policy.  — 
Thus  where  the  laws  of  the  State  of  New  York  prohibited  an  alien 
from  taking  and  holding  real  property,  and  an  alien,  in  order  to 
evade  their  provisions,  purchased  a  lot  of  land  and  had  a  convey- 
ance made  to  a  third  person  who  was  capable  of  holding,  it  was 
held  there  was  no  resulting  trust  in  his  favor.  "Equity,"  said 
Chancellor  Walworth,  "will  never  raise  a  resulting  trust  in  fraud 
of  the  laws  of  the  land."  The  object  of  the  English  statutes  as  to 
the  registry  of  ships  is  to  give  conclusive  information  as  to  the 
title  of  ships.  Therefore,  where  A.  advanced  the  purchase  money 
of  a  ship  which  was  registered  in  the  name  of  B.,  it  was  held  that 


16  EQUITY    CASES    SIMPLIFIED. 

no  trust  would  arise  in  favor  of  A.  "The  registry  acts,"  said 
Lord  Eldon,  '<  were  drawn  upon  this  policy :  that  it  is  for  the  public 
interest  to  secure  evidence  of  the  title  to  a  ship  from  her  origin  to 
the  moment  in  which  you  look  back  to  her  history;  how  far 
throughout  her  ownership  she  has  been  British  built  and  British 
owned;  and  it  is  obvious  that,  if  where  the  title  arises  by  act  of 
the  parties,  the  doctrine  of  implied  trust  in  this  court  is  to  be  ap- 
plied, the  whole  policy  of  these  acts  may  be  defeated."  Ex  parte 
Yallop,  15  Ves.  G8.  And  the  same  is  true  where  the  purpose  is  to 
defraud  individuals.  In  New  Jersey  about  twenty  years  ago,  Jere- 
miah Baldwin  complained  to  the  court  of  chancery  that  his  son-in- 
law,  Campfleld,  was  in  possession  of  some  of  his  property  which  he 
refused  to  give  up,  and  asked  the  court  to  compel  him  to  do  so. 
Some  seven  years  before,  Baldwin,  being  pressed  by  his  creditors, 
got  his  son-in-law  to  purchase  the  property  at  a  sheriff's  sale,  he 
(Baldwin)  furnishing  the  money,  and  Campfleld  taking  the  conve}-- 
ance  to  himself  to  protect  it  from  these  creditors.  But  the  court 
refused  to  declare  and  enforce  a  trust  which  had  been  resorted  to 
for  a  fraudulent  purpose.     Baldwin  i'.  Campfleld,  8  N.  J.  (Eq.)  891. 

5.  Resulting  trusts  of  this  kind  have  been  abolished  by  statute 
in  some  States;  among  them,  Indiana,  Kentucky,  Michigan,  Minne- 
sota, Massachusetts,  Maine,  New  York  and  Wisconsin.  Bisp.  Eq., 
sect.  85. 

II.  But  a  resulting  trust  may  arise  in  other  ways,  viz. :  — 

1.  Where  a  person  hijlding  a  fiduciary  position  purchases  property 
with  the  fiduciary  funds  and  takes  the  title  in  his  oivn  name.  — A.  is 
B.'s  agent,  and  buys  property  with  B.'s  funds,  but  has  the  deed  made 
to  him  (A.)  ;  or  he  is  B.'s  partner  and  purchases  with  the  partnership 
funds  and  takes  the  title  to  himself  alone ;  or  he  is  B.'s  guardian  and 
does  the  same  thing.  In  all  these  instances  a  trust  in  the  property 
will  result  to  B.,  which  trust  equity  will  enforce  in  B.'s  favor.  This 
rule  applies  to  both  real  and  personal  property. 

2.  Where  there  is  a  voluntary  conveyance  without  any  considera- 
tion, and  it  appears  that  the  grantee  was  not  intended  to  take  benefi- 
cially. —  Formerly  the  law  would  presume  that  a  man  would  not  pai-t 
with  his  property  without  value  received  of  some  kind,  and  a  re- 
sulting trust  to  the  original  holder  was  always  held  to  arise  out  of 
such  a  transaction.  "  But  the  true  rule  now  seems  to  be  that  where 
the  instrument  is  perfectly  executed  and  intended  to  operate  at 
once,  no  resulting  trust  for  the  grantor  will  arise  from  the  mere 


EQUITY    CASES    SIMPLIFIED.  17 

fact  that  the  transaction  is  a  voluntary  one,  unless  there  are  other 
circuinstancea  which  tend  to  show  that  the  grantee  was  not  in- 
tended to  take  beneficially."     Bisp.  Eq.,  sect.  90. 

3.  Wliere  there  is  a  disposition  of  the  property  on  trust,  but  no  trust 
is  declared,  or  is  only  partially  declared,  or  wholly  or  partially  fails . — 
On  this  point  see  Mayor  of  Gloucester  v.  Wood,  post. 

2 


18  EQUITY    CASES    SIMPLIFIED. 


FAILURE  OF  TRUST. 


MAYOR  OF   GLOUCESTER  v.    WOOD. 

[3  Hare,  131;   1  H.  L.  Cas.  272.] 

James  Wood,  Esq.,  of  Gloucester,  was  a  very  rich 
man,  and  a  very  public-spirited  citizen.  When  his 
will  was  read,  it  was  found  that  he  had  in  a  very  munifi- 
cent manner,  left  the  sum  of  £200,000  to  his  native 
city ''for"  (so  the  will  read)  "the  purpose  I  have 
before  named."  Unfortunately,  however,  for  the  citi- 
zens of  Gloucester,  nowhere  among  the  deceased  gen- 
tleman's papers  could  any  mention  of,  or  bequest  to, 
the  city  be  found.  The  city,  however,  laid  claim  to 
the  £200,000,  but  was  unsuccessful,  the  court  holding 
that  the  money  being  devised  upon  trust,  and  no  trust 
being  declared,  it  must  result  to  the  testator's  estate. 

Where  a  voluntary  disposition  of  property,  by  deed  or  will,  is 
made  to  a  person  as  trustee,  and  the  trust  is  not  declared  at  all,  or 
is  ineffectually  declared,  or  does  not  extend  to  the  whole  interest 
given  to  the  trustee,  or  it  fails  wholly  or  in  part  by  lapse  or  other- 
wise, the  interest  so  undisposed  of  will  be  held  by  the  trustee,  not 
for  his  own  benefit,  but  as  a  resulting  trust  for  the  donor  himself  or 
his  heir  at  law,  or  next  of  kin,  as  the  case  may  be.  Hill  on  Trustees, 
113.  This  rule,  it  should  be  noted,  does  not  apply  to  a  disposition 
based  upon  a  valuable  consideration. 

So,  where  the  gift  is  made  upon  trusts  which  are  effectively  de- 
clared, but  which  do  not  exhaust  the  whole  interest  conveyed,  the 
residue  will  result  to  the  donor  or  his  heirs.  But  a  distinction 
should  be  observed  between  a  gift  to  a  person  for  a  particular  pur- 
pose, which  does  not  exhaust  the  interest,  and  a  gift  of  the  same 


EQUITY    CASES    SIMPLIFIED.  19 

interest  subject  to  a  particular  charge.  Tlius,  A.  devises  to  B.  the 
sum  of  $1,000,  and  charges  this  sum  with  the  payment  of  his  debts. 
If  the  debts  amount  to  but  $500,  the  balance  goes  to  B.,  and  does 
not  result  to  A.'s  estate. 

A  very  important  exception  to  the  rule,  that  if  the  trust  is  not 
Bufficiently  declared,  the  gift  vpill  fail  and  become  a  resulting  trust, 
exists  in  the  case  of  charitable  trusts.     See  next  case. 


20  EQUITY   CASES    SIMPLIFIED. 


CHARITABLE  TRUSTS— THE  '' CYPRES"  DOC- 
TRINE. 


JACKSON  V.    PHILLIPS. 

[14  Allen,  571.] 

Francis  Jackson,  of  Boston,  some  time  before  the 
civil  war,  bequeathed  a  considerable  sum  of  money  to 
William  Lloyd  Garrison,  Wendell  Phillips,  and  others 
as  trustees,  "  to  use  for  the  preparation  and  circulation 
of  books,  newspapers,  the  delivery  of  speeches,  and 
such  other  means,  as  in  their  judgment  will  create  a 
public  sentiment  that  will  put  an  end  to  negro  slavery 
in  this  country."  Another  sum  he  likewise  left  to 
trustees,  *'  for  the  benefit  of  fugitive  slaves,  who  may 
escape  from  the  slave-holding  States."  Mr.  Jackson 
did  not  live  to  read  President  Lincoln's  Emancipation 
Proclamation,  or  the  Thirteenth  Amendment;  be- 
fore the  litigation  over  his  will  was  terminated,  slav- 
ery was  abolished  in  the  United  States.  It  being  no 
longer  possible  that  the  money  could  be  applied  to 
these  purposes,  the  trust,  if  it  had  been  a  jDrivate  one, 
would  have  lapsed.  But  because  it  was  a  charitable 
trust,  the  court  held  that  it  would  carry  out  the  testa- 
tor's intention  as  nearly  as  possible,  and  ordered  that 
the  first  fund  should  be  paid  to  the  New  England. 
Branch  of  the  American  Freedmen's  Union  Commis- 
sion, and  that  the  second  sum  should  be  applied  to  the 


EQUITY    CASES    SIMPLIFIED.  21 

use  of  needy  persons  of  African  descent,  in  the  city  of 
Boston ,  preference  being  given  to  such  as  had  escaped 
from  slavery. 

"A  charity,"  said  Chief  Justice  Gray  in  the  above  case,  "  being  a 
trust  in  the  support  and  execution  of  which  the  whole  public  is 
concerned,  and  which  is,  therefore,  allowed  by  the  law  to  be  per- 
petual, deserves  and  often  requires,  the  exercise  of  a  larger  discre- 
tion by  the  court  of  chancery  than  a  mere  private  trust.  *  *  * 
It  is  accordingly  well  settled,  by  decisions  of  the  highest  authority, 
that  when  a  gift  is  made  to  trustees  for  a  charitable  purpose,  the 
general  nature  of  which  is  pointed  out,  and  which  is  lawful  and 
valid  at  the  time  of  the  death  of  the  testator,  and  no  Intention  is 
expressed  to  limit  it  to  a  particular  institution  or  mode  of  applica- 
tion, and  afterwards  either  by  change  of  circumstances,  the  scheme 
of  the  testator  becomes,  impracticable,  or  by  change  of  law  becomes 
illegal,  the  fund  having  once  vested  in  the  charity,  does  not  go  to  the 
heirs  at  law  as  a  resulting  trust,  but  is  to  be  applied  by  the  court 
of  chancery,  in  the  exercise  of  its  jurisdiction  in  equity,  as  near  the 
testator's  particular  directions  as  possible  to  carry  out  his  general 
charitable  intent." 

This  is  known  to  lawyers  as  the  cij  pres  (as  near  as)  doctrine,  and 
is  an  important  exception  to  the  general  rule,  that  one  of  the  requi- 
sites to  the  creation  of  a  valid  trust  is  certainly  in  the  object  to  be 
benefited. 


22  EQUITY    CASES    SIMPLIFIED. 


CONSTEUCTTVE  TRUSTS ~  VENDOR'S  LIEN 
FOR  PURCHASE  MONEY. 


[A  constructive  trust,  as  distinguished  from  express  and  implied 
trusts,  is  one  which  is  raised  by  construction  of  equity,  quite  inde- 
pendent of  any  actual  or  presumed  intention  of  the  parties,  or  any 
fraudulent  intention  on  their  part.] 


MACKRETH  v.  SYMMONS. 

[15  Ves.  320;   1  Wh.  &  Tud.  Ld.  Cas.  Eq.  289.] 

A  person  conveys  Lmd  by  a  deed,  which  recites  that 
the  purchase  money  is  all  paid,  or  contains  a  receipt 
for  the  purchase  money.  As  a  matter  of  fact  the  pur- 
chase money  is  not  paid.     This  case  decides  :  — 

1.  That  the  vendor  has  a  lien  on  the  property  for 
the  unpaid  purchase  money. 

2.  That  a  vendor's  lien  for  unpaid  purchase-money, 
unless  relinquished,  exists  against  all  persons,  except 
purchasers  for  valuable  consideration  without  notice, 
bavins:  the  leoal  estate. 

3.  That  another  security  taken  and  relied  on  may, 
according  to  its  nature  and  the  circumstances  under 
which  taken,  be  evidence  of  relinquishment,  but  the 
proof  is  on  the  purchaser. 

A  vendor's  lien  may  be  defined  as  that  hold  or  charge  on  property 
which  a  person  has  who  has  sold  the  same,  but  has  not  received  the 
purchase-money,  or  the  whole  of  it.  This  lien  exists  even  though 
the  deed  expresses  that  the  consideration  is  paid  and  a  receipt  is  in- 


EQIITY    CASES    SIMPLIFIED.  23 

dorsed  on  it.  It  must  be  borne  in  mind  that  (as  decided  in  the 
above  case)  the  taking  of  a  security  is  only  an  evidence  of  relin- 
quishment by  the  vendor  of  his  lien;  and,  as  a  general  rule,  the 
taking  of  a  mere  personal  security,  e.g.,  a  bill  of  exchange  or  pro- 
missory note,  will  not  deprive  the  vendor  of  his  lien,  unless,  indeed, 
there  was  a  plain  intention  to  substitute  it  for  the  lien,  though,  if 
he  take  a  totally  distinct  and  independent  security,  such  as  a  mort- 
gage, the  lien  is  usually  lost.  Inderraaur  Ld.  Cas.  Eq.  GO.  The  test 
is,  was  the  security  intended  to  be  substituted  for  the  purchase 
money,  or  was  it  taken  as  a  mere  cumulative  security? 

The  vendor's  lien  binds  the  estate  in  the  hands  of  the  following 
individuals :  — 

1.  The  purchaser  himself,  and  his  heirs,  and  all  persons  taking 
under  him  or  them  as  volunteers,  i.e.,  without  paying  a  valuable 
consideration. 

2.  Subsequent  purchasers  for  valuable  consideration  who  have 
notice  of  the  purchase  money  remaining  unpaid. 

In  like  manner  the  vendee  of  property  has  a  lien  on  it  after  he 
pays  the  purchase-money  and  before  the  estate  is  conveyed  to  him. 

A  vendor's  lien  is  by  some  writers  classified  as  a  constructive 
trust,  and  by  others  as  an  implied  trust.  It  is  not  a  particularly 
■good  instance  of  either,  for  whilst  it  may  on  the  one  hand  be  fairly 
said  to  be  raised  simply  by  construction  of  equity  to  satisfy  the  de- 
mands of  justice,  yet  on  the  other  hand  it  seems  equally  correct  to 
say  that  it  is  founded  on  an  implied  intention. 

As  to  constructive  trusts,  when  a  trustee  purchases  trust  prop- 
erty, see  the  next  two  cases. 


24  EQUITY   CASES    SIMPLIFIED. 


SAME  —  PURCHASES  BY  TRUSTEES.. 


KEECH   V.  SANDFORD. 

[Sel.  Cas.  Ch.  61 ;   1  Wh.  &  Tud.  Ld.  Cas.  Eq.  46,] 

The  most  valuable  of  the  worldly  goods  which 
Keech,  Sr.,  left  to  his  son  and  heir  was  the  lease  of 
Riimford  Market.  This  son  and  heir,  being  an  infant, 
Keech,  Sr.,  bequeathed  the  lease  to  his  friend  Sandford, 
to  hold  in  trust  for  said  son  and  heir.  The  time  came 
when  the  lease  was  about  to  expire,  and  Sandford  ap- 
plied to  the  lessor  for  a  renewal  of  the  lease  for  the 
benefit  of  the  infant ;  but  the  lessor,  not  wishing  to, 
have  any  dealings  with  infants,  whose  contracts  are  not 
always  binding,  refused  to  renew  it.  Then  it  was  that 
a  happy  thought  struck  Sandford  :  "  If  young  Keech 
can  not  have  the  lease,  why  can  not  I?  1  have  cer= 
tainly  done  my  duty  in  asking  it  for  him.  Now,  it 
seems  to  me  that  I  am  not  doing  anything  wrong  in 
getting  it  for  myself,  if  I  can."  He  got  it  for  him- 
self, but  when  the  son  and  heir  heard  of  it,  he  brought 
a  suit  against  Sandford  to  have  the  lease  assigned  to 
him,  and  was  successful.  The  court  held  that  a  trustee 
can  not  act  or  contract  for  his  own  benefit  in  re<rard  to 
the  subject  of  the  trust,  and  that  the  advantage  of  all 
that  he  does  about  the  trust  jjroperty  accrues  to  the 
cestui  que  trust,  if  the  latter  desires  it.  "  Though 
there  was  no  fraud  on  Sandford 's  part,  he  should 
rather  have  let  the  lease  expire  than  to  have  had  the 


EQUITY   CASES    SIMPLIFIED.  25 

lease  to  himself.  This  may  seem  hard  that  the  trustee 
is  the  only  person  of  all  mankind  wlio  might  not  have 
the  lease  ;  but  it  is  very  proper  that  rule  should  be 
strictly  pursued,  and  not  in  the  least  relaxed  " 


FOX  V.   MACKRETH. 

[2  Bro  C.  C.  400;  2  Cox,  320;  1  Wh.  &  Tiid.  Ld.  Cas.  Eq.  115.] 

Mr.  Maekreth  being  a  trustee  for  one  Fox  of  certain 
property,  agreed  to  buy  it  from  him  for  the  sum  of- 
£39,500,  and  Fox,  being  ratlier  hard  up,  was  glad  to 
consent,  and  signed  the  deeds  conveying  his  property 
to  Maekreth.  Fox  was  quite  pleased  when  he  pocketed 
the  money,  and  continued  to  think  he  had  done  a  good 
stroke  of  business  until  he  learned  that  Maekreth  had 
subsequently  sold  the  very  same  property  to  a  Mr. 
Page  for  £50,500.  Then  Fox  was  wroth,  and  filed  bis 
bill  in  chancery,  claiming  that  he  was  entitled  to  the 
little  jjrofit  which  Maekreth  had  made  so  easily.  He 
got  it,  the  court  deciding  that  Maekreth  having  pur- 
chased the  estate  from  his  cestui  que  trust  while  the  re- 
lation of  trustee  and  cestui  que  trust  continued  to 
subsist  between  them,  and  without  having  communi- 
cated to  Fox  the  value  of  the  estate  purchased  by  him, 
he  must  be  declared  a  constructive  trustee  for  the 
benefit  of  Fox,  as  to  the  profit  produced  by  the  sale  to 
Page. 

Both  these  cases  are  based  on  the  rule  that  a  trustee  must  not 
make  any  profit  out  of  his  trust.  Formerly,  in  England,  this  rule 
was  carried  so  far  as  to  prevent  a  trustee  from  recovering  anything 
for  his  trouble  and  responsibility  in  the  care  and  management  of 


2()  EQUITY    CASES    SIMPLIFIED. 

the  trust  estate.  Robinsou?).  Pett,  3P.  Wms.  132  ;  2Wb.&Tud.Ld. 
Cas.  Eq.  207.  But  this  rule  has  in  more  modern  times  been  relaxed, 
and  trustees  and  other  fiduciaries  in  this  country  are  entitled  to  a 
compensation  for  their  services.  In  fact,  the  experience  of  the 
average  layman  at  the  present  day  is  tbat  the  old  rule  has  been 
reversed,  and,  whereas,  formerly  the  cestui  que  tnist  used  to  get 
everything  and  the  trustee  nothing,  the  former  now  gets  nothing, 
and  the  latter  everything.  This  new  favorite  of  courts  of  equity 
is  usually  styled  a  "receiver,"  — a  very  appropriate  description. 

Nevertheless,  trustees  (and  the  rule  extends  to  all  in  a  fiduciary 
position,  such  as  executors,  attorneys  and  agents)  must  not  do 
anything  inconsistent  with  the  relation  they  occupy,  as  Keech  v. 
Sandford  abundantly  shows.  If  they  do,  the  profit  they  make  will 
be  held  by  them  as  a  constructive  trust  for  the  benefit  of  the  cestui 
que  trust. 

The  ground  of  the  decision  in  Fox  v.  Mackreth  was  not  that 
•Mackreth  had  purchased  the  property  from  Fox  at  an  undervalue, 
but  that  he  had  purchased  it  from  him  while  the  relation  of  trustee 
and  cestui  que  trust  continued  to  subsist  between  them,  and  without 
having  communicated  to  Fox  the  knowledge  of  the  value  of  the  es- 
tate which  he  had  acquired  as  trustee ;  for  if  the  relation  of  trustee 
and  cestui  que  trust  had  been  clearly  dissolved,  and.  Mackreth  had 
made  Fox  fully  acquainted  with  the  knowledge  which  he  had  ac- 
quired of  the  value  of  the  property,  the  purchase  would  not  have 
been  set  aside.  A  trustee  can  purchase  from  a  cestui  que  trust  who 
is  sui  juris,  and  has  discharged  him  from  all  the  obligations  which 
attached  to  him  as  trustee ;  but  even  then,  any  such  transaction  will 
be  viewed  by  the  court  with  jealousy,  and  the  trustee  must  show 
that  there  is  a  clear  and  distinct  contract,  ascertained  to  be  such, 
after  the  fullest  examination  of  all  the  circumstances,  that  the  ces- 
tui que  trust  intended  the  trustee  should  buy,  and  that  there  is  no 
fraud,  concealment,  or  possible  advantage  taken  by  the  trustee  of 
any  information  acquired  by  him  in  his  character  of  trustee." 
Snell's  Eq.  473. 


EQUITY    CASES    SIMPLIFIED.  27 


PURCHASES  FROM  TRUSTEES. 


ELLIOT  V.  MERRYMAN. 

[Barnard.  Ch.  78;  1  Wh.  &  Tud.  Ld.  Cas.  Eq.  64.] 

Thomas  Smith  devised  his  real  and  personal  estate  to 
his  friend,  Goodwin,  in  trust  (or  charged  with),  the 
payment  of  his  debts  and  legacies.  Goodwin  sold 
most  of  the  realty  and  personalty  to  Merry  man,  and 
received  the  consideration  from  him  ;  but  neglected  to 
apply  it  to  the  payment  of  Smith's  debts.  The  hit- 
ter's creditors  did  not  like  this  sort  of  thing,  and  as 
Goodwin  was  a  man  of  straw  they  sought  to  follow 
Smith's  lands  into  Merryman's  hands,  on  the  ground 
that  Merryman,  purchasing  from  a  trustee,  was  bound 
to  see  to  the  application  of  the  purchase  money.  But 
in  this  contention  they  were  unsuccessful.  The  court 
held  :  — 

1.  That  where  real  estate  is  devised  to  trustees  upon 
trust  to  sell  for  payment  of  debts  generally,  or  charged 
with  payment  of  debts,  the  purchaser  is  not  bound  to 
see  that  the  money  is  rightly  applied. 

2.  That  where  real  estate  is  devised  upon  trust  to  be 
sold  for  the  payment  of  certain  debts,  mentioning  to 
whom  in  particular  those  debts  are  owing,  the  purchaser 
is  bound  to  see  that  the  money  is  applied  in  payment  of 
those  debts. 

3.  That  a  purchaser  of  leasehold  or  other  personal 
estate  is  never  liable  to  see  to  the  application  of  the 
purchase  money  —  except  in  cases  of  fraud  —  Ix'cause 


28  EQUITY    CASES    SIMPLIFIED. 

the  executors  are  the  proper  persons  that  by  law  have 
the  power  to  dispose  of  a  testator's  personal  estate. 

The  cestui  que  trust  was  so  great  a  favorite  with  courts  of  equity 
that  they  sought  by  every  means  to  protect  him  against  the  fraud 
of  the  trustee.  Therefore  they  held,  that  where  be  was  mentioned 
In  the  devise  as  a  beneficiary,  the  purchaser  of  trust  property  from 
the  trustee  was  bound  to  see  that  the  money  was  properly  applied 
in  accordance  with  the  trust.  This  doctrine,  however,  was  a  few 
years  ago  repealed  in  England  by  Parliament  —  for  it  was  found  to 
bear  too  hard  on  purchasers,  and  to  unduly  hamper  the  transfer  of 
property.  The  statute  of  22  and  23  Vict.  c.  35,  sect.  23,  provides 
as  follows:  — 

"The  bona  fide  payment  to,  and  the  receipt  of,  any  person  to 
whom  any  purchase  or  mortgage  money  shall  be  payable  upon  any  ex- 
press or  implied  trust,  shall  effectually  discharge  the  person  pay- 
ing the  same  from  seeing  to  the  application  or  being  answerable  for 
the  misapplication  thereof,  unless  the  contrary  shall  be  expressly 
declared  by  the  instrument  creating  the  trust  or  security."  It  is 
also  enacted,  by  23  and  24  Vict.  c.  145,  sect.  29,  as  follows:  *«  The 
receipts  in  writing  of  any  trustees  or  trustee  for  any  money  payable 
to  them  or  him,  by  reason  or  in  the  exercise  of  any  trusts  or 
powers  reposed  or  vested  in  them  or  him,  shall  be  sufficient  dis- 
charges  for  the  money  therein  expressed  to  be  received,  and  shall 
effectually  exonerate  the  persons  paying  such  money  from  seeing  to 
the  application  thereof,  or  from  being  answerable  for  any  loss  or 
misapplication  thereof." 

In  the  United  States,  the  equitable  doctrine  of  seeing  to  the  ap- 
plication of  the  purchase  money  was  never  favored,  and  the  dis- 
tinction between  trusts  for  the  payment  of  debts  generally,  and  for 
the  payment  of  particular  debts  is  not  recognized.  The  purchaser 
in  this  country  is  not  bound  to  see  to  the  application  of  the  purchase 
money;  and  is  not  responsible  for  its  misapplication  in  the  absence 
of  fraud. 


EQUITY   CASES    SISIPLIFIED.  29 


RESPONSIBILITY  FOR  ACTS    OF  CO-TRUSTEE. 


TOWNLEY  V.  SHERBORNE. 

[Bridg.  35;  2  Wh.  &  Tud.  Ld.  Cas.  Eq.  8G0.] 

A.,  B.,  C,  and  D.  were  trustees  of  some  leasehold 
premises.  A.  and  B.  collected  the  rents  for  the  first 
year  and  a  half,  and  signed  acquittances  therefor,  but 
from  that  period  the  rents  were  uniformly  received  by 
an  assignee  of  C.  The  liability  of  A.  and  B.  during 
the  first  year  and  a  half  was  not  disputed  ;  but  the 
question  was  raised  whether  they  were  not  also  charge- 
able with  the  rents  which  had  accrued  subsequently, 
but  had  never  come  to  their  hands.  After  long  and 
mature  deliberation  the  judges  resolved  :  — 

1.  That  where  lands  are  conveyed  to  two  or  more  on 
trust,  and  one  of  them  receives  the  profits,  his  co- 
trustees shall  not  be  charged  therefor,  unless  there  has 
been  fraud  in  the  matter,  for  they  being  joint  tenants 
or  tenants  in  common,  any  one  of  them  may,  by  law, 
receive  all  of  the  profits. 

2.  That  where  there  was  any  fraud  or  evil  intent  in 
the  trustees  permitting  one  to  receive  the  whole  profits, 
the  others  should  be  charged,  though  they  recei"ved 
nothing. 


30  EQUITY    CASKS    SIMI'LIFIED. 

BRICE  V.    STOKES. 

[11  Ves.  319 ;  2  Wh.  &  Tud.  Ld.  Cas.  Eq.  877.] 

Ill  this  case  the  question  was,  whether  a  trustee 
should  be  charged  with  certain  purchase  mone}'^  which, 
though  he  had  joined  in  the  receipt,  had  been  received 
by  his  co-trustee.  The  court  held,  that  under  the 
particular  circumstances  of  the  case,  he  was  liable  to 
be  charged,  the  sale  being  unnecessary,  and  he  permit- 
ting his  co-trustee  to  keep  and  act  with  the  money 
contrary  to  the  trust ;  but  that  he  should  not  be  charged 
in  respect  of  the  interest  of  one  of  the  cestui  que  trust 
who  had  notice  of  the  breach  of  trust  and  acquiesced 
therein. 

The  court  laid  it  down  that  there  is  this  great  dis- 
tinction between  trustees  and  executors,  viz.,  that, 
though  where  trustees  or  executors  join  in  a  receipt, 
prima  facie  all  are  presumed  or  considered  to  have 
received  the  money,  yet  it  is  competent  for  a  trustee  to 
exonerate  himself  by  showing  that  the  money  acknowl- 
edged to  have  been  received  by  all,  was,  in  fact, 
received  by  one,  and  the  other  joined  only /or  con- 
formity;  but  an  executor  cannot  do  this,  for  it  is  not 
necessary  for  him  to  join  in  the  receipt  (as  it  is  in  the 
case  of  a  trustee),  and  therefore  if  he  does  join,  he  is 
to  be  considered  as  assuming  a  power  over  the  fund, 
and  therefore  answerable. 

From  the  two  preceding  cases,  it  will  be  seen  that  as  a  general 
rule  a  trustee  is  not  responsible  for  the  conduct  of  his  co-trustee. 
But  any  fraud  or  improper  dealing,  or  gross  negligence  on  his  part 
■will  render  him  responsible,  as  for  example,  if  he  were  to  stand 


EQIITY    CASES    SIMPLIFIED.  31 

by  and  see  a  breach  of  trust  committed  by  his  co-trustee,  or  if  he 
permits  him  to  deal  with  the  trust  money  contrary  to  the  trust. 
Where  there  are  several  trustees  they  should  all  concur  in  the  busi- 
ness of  the  trust.  In  the  matter  of  public  trusts,  however,  a 
majority  may  act  and  bind  the  others. 

As  to  the  duties  and  responsibilities  of  trustees,  see  Keech  v. 
Sandford,  and  Fox  v.  Mackreth,  ante. 


32  EQUITY    CASES    SIMPLIFIED. 


WILLS. 

ASHBURNEK  v.  MACGUIRE. 

[2  Bro.  C.  C.  108;  2  Wh.  &  Tud.  Ld.  Cas.  Eq.  267.] 

Ill  September,  1778,  Mr.  Macguire  made  his  will. 
Among  other  things  he  bequeathed  to  William  Beawes, 
a  natural  child  of  his,  at  that  time  at  school,  "my 
capital  stock  of  £1,000  in  the  East  India  Company 
stock."  Mr.  Macguire  at  this  time  was  possessed  of 
£1,000  in  East  India  stock,  but  before  his  death  sold 
it  all  out.  William  insisted  that,  notwithstanding 
this,  he  ought  to  receive  that  much  from  his  father's 
estate,  but  Mr.  Macguire's  representatives  did  not  see 
it  in  that  light,  and  when  he  went  to  court  about  it, 
the  Lord  Chancellor  decided  that  he  was  not  entitled  to 
anythijig,  as  the  bequest  being  of  a  specific  thing,  its 
alienation  by  the  testator  extinguished  the  son's  claim. 


BLAND  V.  MAYO. 

[4  Md.Ch.  484.] 


Even  Chancellor  Bland,  of  Maryland,  could  not 
make  a  will  clear  enough  to  satisfy  his  heirs  without 
going  into  court  to  find  out  their  rights  under  it.     He 


EQUITY    CASES    SIMPLIFIED,  33 

had  made  three  different  devises  of  his  property.  1. 
He  devised  "  all  his  property,  real  and  personal,  ex- 
cept his  Bland  Air  estate,"  to  his  wife.  2.  He  devised 
his  Bland  Air  estate  to  his  daughter.  3.  He  devised 
all  his  books,  historical  and  biographical,  and  Rees' 
Encyclopoedia,  to  his  son-in-law,  Capt.  Mayo.  It  hap- 
pened that  the  Chancellor  left  some  debts,  and  the  ques- 
tion was  out  of  whose  legacy  should  they  be  paid. 

The  court  decided  that  the  debts  must  come  out  of 
the  devise  to  his  wife,  which  must  be  exhausted  before 
they  could  resort  to  the  daughter's  and  the  son-in- 
law's  bequests. 


SMITH  V.  LAMPTON. 

[8  Dana,  gp.] 


Martin  Smith,  of  Kentuckjs  bequeathed  to  his 
three  sons  $500  each,  and  to  his  daughters  $250  each, 
"in  bank  notes  of  the  Bank  of  Kentucky  out  of 
moneys  of  that  description  now  in  my  hands  ;  "  and 
directed  his  executor  to  invest  the  same  in  land  for  the 
use  of  the  legatees.  On  the  day  the  will  was  made  he 
delivered  to  the  executor  notes  of  the  Bank  of  Ken- 
tucky to  the  amount  of  the  legacies  to  the  boys,  which 
the  executor  invested  for  them.  But  he  delivered 
none  for  the  girls,  and  at  his  death  he  was  not  the 
owner  of  any  notes  of  the  Bank  of  Kentucky. 

Under  these  circumstances,  if  this  were  a  specific 
legacy,  it  was  clear  that,  according  to  the  rule  in  Ash- 
burner  V.  Macguire,  the  disposal  by  Martin  of  all  the 
notes  he  had  for  the  benefit  of  the  boys  was  an  ademp- 


34  EQUITY    CASES    SIMPLIFIED. 

tion  of  the  legacies  to  the  girls,  and  those  legacies, 
therefore,  failed.  But  one  of  the  girls  brought  a  suit 
ill  chancery  for  her  share,  and  was  successful,  on  the 
ground  that  this  was  not  a  specific,  but  a  demonstra- 
tive legacy.  "A  bequest,"  said  the  court,  "of  a  cer- 
tain sum  of  money  '  out  of,'  or  '  to  be  paid  out  of,'  a 
designated  fund,  or  note,  or  bond,  or  a  bequest  of 
stock  '  out  of  a  greater  amount  of  the  like  stock,  has 
been  generally  considered  as  a  demonstrative  legacy 
pledging  a  particular  fund  as  a  collateral  security,  and 
being  as  to  that  security  merely  directory,  but  not 
depending  for  its  validity  or  value  on  the  sufficiency  or 
existence  of  the  fund  tbus  especially  dedicated  for 
securing  it." 

Bequests  or  legacies  are  classed  under  three  heads :  (1)  general, 
(2)  specific,  and  (3)  demonstrative. 

1.  A  general  legacy  is  one  which  does  not  amount  to  a  bequest 
of  any  particular  thing  as  distftiguished  from  all  others  of  the  same 
kind;  e.g.,  if  Mr.  Bonner,  of  the  New  York  Ledger,  were  to  be- 
queath to  his  friend  and  contributor,  Henry  Ward  Beecher,  a  horse, 
this  would  be  a  general  legacy.  A  general  legacy  is  sometimes 
termed  a  "  pecuniary  "  legacj'. 

2.  A  specific  legacy  is  a  bequest  of  a  particular  thing  or  sum  of 
money,  or  debt,  as  distinguished  from  all  others  of  the  same  kind ; 
e.g.,  Mr.  Bonner  bequeaths  His  horse  Dexter,  —  this  is  a  specific 
legacy. 

3.  A  demonstrative  legacy  is  one  which  is  in  its  nature  a  general 
legacy,  but  there  is  a  particular  fund  pointed  out  to  satisfy  it;  e.g., 
Mr.  Bonner  bequeaths  "  a  horse  out  of  my  stable,"  this  is  a  demon- 
strative legacy. 

A  man  was  once  asked  his  occupation,  and  he  answered  that  he 
was  a  legatee  —  a  rather  pleasant  situation  to  occupy  as  things  go. 
But  there  is  a  considerable  choice  between  the  three  kinds  of  lega- 
cies just  mentioned.  The  trouble  about  a  general  legacy  is  that  if, 
after  the  payment  of  the  testator  debts,  there  are  not  sufficient  assets 
to  pay  all  the  legacies,  a  general  legacy  will  abate,  but  a  specific 
legacy  will  not;  i.e.,  the  party  who  is  fortunate  enough  to  be  enti- 


EQUITY   CASES    SIMPLIFIED.  35 

tied  to  a  specific  bequest  must  be  first  paid  in  full,  and  the  general 
legatee  will  have  to  be  satisfied  with  what  is  left,  even  though  it  is 
only  one  per  cent  of  the  amount  of  his  legacy.  This  was  the  reason 
that  it  was  held  that  Chancellor  Bland's  son-in-law  and  daughter 
should  take  their  bequests  free  of  the  testator's  debts  —  theirs 
were  specific  bequests. 

On  the  other  hand,  a  specific  legacy  has  its  drawbacks,  for  if  the 
testator  should  happen  to  alienate  the  property  during  his  lifetime, 
or  if  the  thing  that  he  has  devised  cannot  be  found  at  his 
death,  the  legatee  will  not  be  entitled  to  anything  out  of  the  testa- 
tor's general  estate — ^  because  nothing  but  the  specific  thing  can  be 
given  to  him.  This  was  the  trouble  with  William  Beawes's  legacy. 
So  if,  in  the  illustration  given  above,  Mr.  Bonner  should  sell  Dexter, 
or  the  horse  should  be  killed,  before  his  death,  the  legatee  would 
get  nothing. 

On  the  whole,  the  position  of  a  party  entitled  to  a  demonstrative 
legacy  is  the  best.  This  kind  of  a  legacy  has  the  advantages  of 
both  the  others  without  the  di-awbacks  to  either.  It  is  so  far 
in  the  nature  of  a  specific  legacy  that  it  must  be  paid  first,  and 
any  deficiency  of  assets  must  fall  on  the  general  legacies ;  and  it  is 
so  far  like  a  general  legacy  that  the  alienation  or  non-existence  of 
the  property  pointed  out  as  the  means  of  satisfying  it  does  not  ex- 
tinguish it.  Thus,  in  Mr.  Bonner's  bequest  of  a  horse  out  of  his 
stable,  Mr.  Bonner  might  sell  his  entire  stable  before  he  died,  yet 
the  legatee  could  call  on  the  executor  to  buy  him  a  horse. 


36  EQUJTY   CASES    SIMPLIFIEU. 


DONATIO  MORTIS  CAUSA. 


WARD  V.  TURNER. 

[2  Ves,  431 ;   1  Wh.  &  Tud.  Ld.  Cas.  Eq.  905,] 

In  the  household  of  old  William  Fly,  lived  John 
Mosely ,  a  poor  relation,  who  was  glad  enough  to  act  as  a 
sort  of  body  servant  to  his  richer  relative.  William  Fly 
was  one  day  taken  very  ill,  and  expecting  to  die,  said 
to  his  retainer,  "  Mosely,  I  give  you  all  the  goods  and 
plate  in  this  house."  Then  going  to  his  desk,  he  took 
from  it  three  papers  and  said,  "  I  give  you,  Mosely, 
these  papers,  which  are  receipts  for  South  Sea  Annui- 
ties, and  will  serve  you  after  I  am  dead." 

William  Fly  died,  and  Mosely  filed  a  bill  in  chancery 
claiming  the  g-oods  and  the  stock  as  a  donatio  mortis 
causa.  But  he  did  not  succeed,  for  the  court  held  that 
to  a  valid  gift  of  this  kind  delivery  was  necessary  ;  that 
the  goods  and  plate  had  never  been  delivered,  and  that 
the  delivery  of  the  receipts  was  no  sufficient  delivery 
of  the  stock. 

A  donatio  mortis  causa  is  a  gift  made  ia  such  a  state  of  illness  or 
expectation  of  death,  as  warrants  a  supposition  that  it  was  made  in 
contemplation  of  that  event.  Such  a  disposition  of  property  occurs 
often  when  a  man,  who  has  put  off  making  his  will,  finds  that  he  has 
not  time  to  execute  so  formal  a  document,  or  is  too  far  gone  even 
to  sign  his  name.  To  a  valid  gift  of  this  kind  there  are  four 
essentials. 

1.  It  must  be  made  in  expectation  of  death.  — The  danger  of  death 
must  be  close  at  hand.    A  Pennsylvanian  enlisted  for  the  war  in 


EQUITY    CASES    Si:MPr.IFIEl).  37 

1S(;1,  but  before  he  went  to  the  front  handed  a  friend  an  envelope 
containing  notes  due  him,  to  give  to  his  sweetheart.  Four  months 
after  he  died  in  the  army;  yet,  it  -was  held  that  this  was  not  a  good 
donatio  causa  mortis,  because  not  made  in  his  last  sickness  or  in  stress 
of  illness  or  present  peril.  Gourley  v.  Linsenbigler,  51  Pa.  St.  345. 
But  a  gift  made  during  extreme  illness  is  presumed  to  be  made  in 
expectation  of  death. 

2.  It  must  be  made  on  condition  that  it  is  to  be  absolute  only  in  case 
of  the  donor^s  death.  ^If  the  donor  recover  from  his  illness,  the  gift 
is  defeated;  and  therefore,  if  his  intention  is  that  it  shall  be  abso- 
lute, and  not  recoverable  by  his  own  act  by  recovery  from  illness, 
it  is  not  a  good  donatio  mortis  causa.  In  au  English  case  the  obligee 
of  a  bond,  five  days  before  "her  death,  signed  a  memorandum,  not 
under  seal,  which  was  indorsed  upon  the  bond,  and  which  purported 
to  be  an  assignment  of  the  bond  loithout  consideration  to  a  person  to 
whom  the  bond  was,  at  the  same  time,  delivered.  The  court,  having 
decided  that  the  transaction  being  incomplete  as  a  gift  inter  vivos,  it 
could  give  the  volunteer  no  relief,  he  tried  to  claim  it  as  a  donatio 
mortis  catisa.  But  here  again  the  court  decided  against  him.  "  In 
order  to  be  good  as  a  donatio  mortis  causa,^^  said  the  judge,  "  the  gift 
must  have  been  made  in  contemplation  of  death,  and  intended  to  take 
effect  only  after  the  donor's  death.  If  it  appeared,  however,  from 
the  circumstances  of  the  transaction,  that  the  donor  really  intended 
to  make  an  immediate  and  irrevocable  gift  of  the  bonds,  that  would 
destroy  the  title  of  the  party  who  claims  them  as  a  donatio  mortis 
causa.''''     Edwards  v.  Jones,  1  Mylne  &  Cr.  220, 

3.  There  must  he  a  delivery  of  the  subject  of  the  gift  to  the  donee  for 
his  own  use.  —  A  good  donatio  mortis  causa  of  a  personal  chattel,  is 
made  by  delivering  it  into  the  hands  of  the  donee  or  his  agent. 
But  a  delivery  to  the  donor's  agent  is  not  enough.  In  Ward  v. 
Turner,  a  symbolical  delivery  (the  receipts  for  the  stock)  was  held 
insufficient;  but  it  has  been  held  that  the  delivery  of  the  key  of  a 
box  is  sufficient  to  carry  its  contents.  Jones  v.  Selby,  Prec.  in  Ch. 
300.  And  where  the  thing  is  a  chose  in  action,  delivery  of  some  docu- 
ment essential  to  its  recovery  is  enough.  Moore  v.  Darton,  4  DeG. 
&  Sm.  519. 

4.  The  donor  must  part  with  all  dominion  over  the  gift.  —  An  early 
English  case  is  a  good  illustration  of  this  rule.  A.,  being  very  ill, 
ordered  a  box,  containing  wearing  apparel,  to  be  carried  to  B.'s 
house  to  be  delivered  to  B.  Next  day  B.  brought  the  key  to  A., 
who  desired  it  to  be  taken  back,  saying  that  he  should  want  a  pair 


38  EQUITY   CASES    SIMPLIFIED. 

of  pants  out  of  it.  "  In  the  case  of  a  donatio  mortis  causa,''^  said  tlie 
court,  "possession  must  be  immediately  given;  and  also  in  parting 
with  the  possession  it  is  necessary  that  the  donor  should  part  with 
the  dominion  over  it.  It  seems  rather  to  have  been  left  in  B.'s 
care  for  safe  custody,  and  was  so  considered  by  her."  Hawkins  v. 
Blewitt,  2  Esp.  663. 

Equity  does  not  look  on  gifts  of  this  kind  with  favor,  avoiding,  as 
they  do,  the  formalities  requisite  to  a  valid  will  of  property,  or  a 
gift  inter  vivos,  and  opening  so  wide  a  door  to  fraud  in  their  proof. 
The  evidence  to  support  a  donatio  mortis  causa  must,  therefore,  be' 
full  and  explicit.  In  New  York,  some  years  ago,  one  who  had  nursed 
a  dying  man  produced  his  watch,  and  claimed  to  have  received  it 
as  a  gift  of  this  kind.  But  this  did  not  go  down  with  the  court,  for 
they  held  that  he  could  not  rely  on  possession  of  the  watch  as  evi- 
dence of  delivery,  but  must  produce  a  disinterested  witness  of  the 
transaction,  else  he  could  not  keep  the  time-piece.  Sueckner  v. 
Taylor,  1  Redf.  427. 

A  donatio  mortis  causa  is  something  like  a  legacy,  and  something 
like  a  gift  inter  vivos.  It  resembles  a  legacy  in  these  respects,  viz. : 
(1.)  It  is  revocable  during  the  donor'%  lifetime.  (2.)  It  may  be 
made  at  law  to  the  donor's  wife.  (3.)  It  is  liable  to  the  debts  of  the 
donor  on  a  deficiency  of  assets.  It  resembles  a  gift  inter  vivos  in 
these  respects,  viz. :  (1.)  It  takes  effect  from  the  delivery  in  the 
donor's  lifetime.  (2.)  It  requires  no  assent  on  the  part  of  the  exe- 
cutor or  administrator  to  perfect  its  title.  • 


EQUITY    CASES   SIMPLIFIED.  39 


CONVERSION— ''  EQUITY  LOOKS   ON  THAT  AS 
DONE  WHICH  OUGHT  TO  BE  DONE." 


FLETCHER  v.  ASHBURJfER. 

[1  Bro.  C.  C.  497;  1  Wh.  &  Tud.  Ltl.  Cas.  Eq.  826.] 

John  Fletcher  made  a  will  by  which  he  devised  his 
real  estate  to  trustees,  to  sell  the  same  after  his 
widow's  death,  and  divide  the  proceeds  between  his 
son  and  daughter.  The  son  and  daughter,  however, 
both  died  in  the  widow's  lifetime,  and  the  latter,  as 
the  son's  next  of  kin,  became  entitled  to  the  property, 
if  it  were  to  be  considered  personalty.  On  the  other 
hand,  the  son's  heir-at-law  claimed  this  share  as  realty, 
for  the  reason  that  it  had  never  been  sold  ))y  the  trus- 
tees. But  the  court  held  that  this  did  not  matter ; 
that  it  is  an  established  principle  of  equity  that  money 
directed  to  be  employed  in  the  jDurchase  of  land  and 
land  directed  to  be  sold  and  turned  into  money,  are  to 
be  considered  as  that  species  of  property  into  which 
they  are  to  be  converted  ;  and,  therefore,  in  this  case, 
the  real  estate  having  been  ordered  to  be  sold,  it  be- 
came personalty  (even  although  it  had  not  been  sold) 
and  went  accordingly. 

The  doctrine  of  conversion  which  this  case  turned  on  forms  the 
best  illustration  cf  the  maxim,  "  Equity  looks  on  that  as  done  which 
ought  to  be  done."  Property  is  directed  to  be  converted ;  it  is  the 
donor's  intention  that  it  should  be  so,  and  equitj'  treats  his  inten- 
tion as  carried  out,  even  though  actually  not  so.     Conversion  is  de- 


40  EQUITY    CASES    SIMPLIFIED. 

fined  as  "  that  change  in  the  nature  of  property  by  which  for 
certain  purposes,  real  estate  is  considered  as  personal,  and  personal 
estate  as  real,  and  transmissible  and  descendable  as  such."  To  ef- 
fect a  conversion  it  is  necessary  that  the  direction  to  convert  be 
imperative  and  not  optional,  and  a  direction  to  convert  at  the  re- 
quest of  certain  parties  will  be  held  imperative  unless  it  is  inserted 
for  the  purpose  of  giving  a  discretion  to  those  parties. 

Following  the  doctrine  of  conversion  comes  that  of  reconver- 
sion, which  has  been  defined  as  "  that  notional  or  imaginary  process 
by  which  a  prior  constructive  conversion  is  annulled  and  taken 
away."  Snell,  Eq.  203.  Thus  land  is  given  upon  trust  to  sell  and 
pay  the  proceeds  absolutely  to  A.,  and  conversion  here  takes  place; 
but  A.  can  say  he  prefers  the  land  and  will  take  the  land  —  this  is 
reconversion.  If  there  are  several  persons  interested  in  the  sub- 
ject matter  the  question  arises,  can  one  reconvert  without  the  con- 
sent of  the  other  or  othei's?  —  that  is  to  say,  firstly,  land  is  directed 
to  be  sold  and  the  proceeds  paid  to  A.  and  B. ;  and  secondly,  money 
is  directed  to  be  laid  out  in  the  purchase  of  land  for  A.  and  B. ;  in 
these  cases  can  A.  elect  to  take  his  share  in  its  original  quality,  that 
is,  can  he  reconvert  without  B.?  The  answer  is,  that  in  the  first 
case  he  cannot,  but  in  the  second  he  can.     Snell,  Eq.  205. 


EQUITY    CASES    SIMPLIFIED.  41 


ACKROYD  V.  SMITHSON. 

[1  Bro.  C.  C.  503;  1  Wh.  &  Tud.  Ld.  Cas.  Eq.  872.] 

"Lord  Eldon's  fortune,"  says  Lord  Campbell,  in 
his  "Lives  of  the  Chancellors,"  "was  made  by 
Ackroyd  v.  Smithson."  Less  than  a  month  before 
the  death  of  this  great  lawyer,  a  friend,  dining  with 
him,  asked  his  host  to  relate  to  him  the  incidents  con- 
nected with  its  argument  and  decision.  "  I  will," 
said  Lord  Eldon.  "  Come,  help  yourself  to  a  glass  of 
Newcastle  port,  and  give  me  a  little.  You  must  know 
that  the  testator  in  that  cause  had  directed  his  real  es- 
tate to  be  sold,  and  after  paying  his  debts,  and  funeral 
and  testamentary  expenses,  the  residue  of  the  money 
to  be  divided  into  fifteen  parts,  which  he  gave  to  fif- 
teen persons  whom  he  named  in  his  will.  One  of 
these  persons  died  in  the  testator's  lifetime.  A  bill 
was  filed  by  the  next  of  kin,  claiming,  among  other 
things,  the  lapsed  share.  A  brief  was  given  me  to  con- 
sent Ipr  the  heu'-at-law  upon  the  hearing  of  the  cause. 
I  had  nothing  then  to  do  but  to  pore  over  this  brief. 
I  went  through  all  the  cases  in  the  books,  and  satisfied 
myself  that  the  lapsed  share  was  to  be  considered  real 
estate,  and  belonged  to  my  client,  the  heir-at-law. 

"  The  cause  came  on  at  the  Rolls  before  Sir  Thomas 
Sewell.  I  told  the  solicitor  who  sent  me  the  brief 
that  I  should  c^onsent  for  the  heir-at-law,  so  far  as  re- 
garded the  due  execution  of  the  will,  but  that  I  must 
support  the  title  ot  the  heir  to  the  one-fifteenth  which 


42  EQUITY   CASES    SHIPLIFIED. 

had    lapsed.      Accordingly,   I    did  argue  it  and   went 
through  all  the  authorities.     When  Sir  Thomas  Sewell 
went   out    of  court  he  asked  the  Register  who  that 
young  man  was.     The  Register  told  him  it  was  Mr. 
Scott.     '  He  has  argued  very  well,'  said  Sir  Thomas 
Sewell,    'but  I    cannot  agree  with  him.'     This    the 
Register   told   me.     He    decreed    against    my  client. 
The  cause  having  been  carried  by  appeal  to  Lord  Chan- 
cellor  Thurlow,   a  guinea  brief  was   again   brought 
me  to  consent.     I  told  my  client  if  he  meant  by  con- 
sent to  give  up  the  claim  of  the  heir  to  the  lapsed 
share,  he  must  take   his  brief  elsewhere,  for  I  would 
not  hold  it  without  arguing  that  point.     He  said  some- 
thing about  young  men  being  obstinate,  but  that  I 
must  do  as  I  thought  ri^ht.     You  see  the  luckv  thinsr 
was  there  being  two  other  parties,  and  the  disappointed 
one  not  being  content,  there  was  an  appeal  to  Lord 
Thurlow.     In  the  meanwhile,  they  had  written  to  Mr. 
Johnston,  Recorder  of   York,  guardian  to  the  young 
heir-at-law,  and  a  clever  man,  but  his   answer  was: 
'  Do  not  send  good   money  after  bad.     Let  Mr.  Scott 
have  a  guinea  to  give  consent,  and  if  he  will  argue  let 
him   do   so,  but  give  him  no  more.'      So  I  went  into 
court,   and  when  Lord   Thurlow  asked  who  was    to 
appear  for  the  heir-at-law,  I  rose  and  said  modestly 
that  I  was,  and  as  I  could  not  but  think  (with  much 
deference  to  the  Master  of  the  Rolls,  for  I  might  be 
wrong),  that  my  client  had  the  right  to  the  property, 
if  his  lordship  would  give  me  leave,  I  would  argue  it. 
It  was  rather  arduous  for  me  to  rise  against  all  the 
eminent  counsel.     I  do  not  say  that  their  opmions  were 
against  me,    but    they  were    employed    against    me. 
However,  I  argued  that  the  testator  had  ordered  this 


EQUITY    CASES    SIMPLIFIED.  43 

fifteenth  share  of  the  property  to  be  converted  into  per- 
sonal property  for  the  benefit  of  one  particular  indi- 
vidual, and  that,  therefore,  he  never  contemplated  its 
coming  into  possession  of  either  the  next  of  kin  or  the 
residuary  legatee,  but  being  land,  at  the  death  of  the 
individual  it  came  to  the  heir-at-law. 

*'  Well,  Thurlow  took  three  days  to  consider,  and 
then  delivered  his  judgment  in  accordance  with  my 
speech,  and  that  speech  is  in  print  and  has  decided  all 
similar  questions  ever  since." 

The  case  of  Ackroyd  v.  Smithson  is  sometimes  confused  by  stu- 
dents witli  that  of  Fletcher  -y.  Ashburner  as  simply  deciding  the 
doctrine  of  conversion.  But  Ackroyd  v.  Smithson  is,  of  course, 
quite  beyond  the  doctrine  of  conversion,  and  forms  an  instance  of 
a  resulting  trust,  showing  that  where  the  purposes  of  the  conver- 
sion fail  there  the  property  shall  remain  and  go  in  its  original  state ; 
thus  if  a  testator  devises  to  trustees  to  sell  and  divide  the  proceeds 
between  two  persons,  and  they  die  during  the  testator's  lifetime, 
the  property  remains  in  its  original  state,  and  if  only  one  of  the 
parties  dies,  as  to  his  moiety  there  will  be  no  conversion,  but  it 
will  go  according  to  its  original  quality,  and  the  principle  of  this  is, 
that  where  an  estate  is  converted  merely  fur  a  particular  purpose^ 
and  that  fails,  the  court  will  not  infer  an  intention  to  convert  for 
any  other  purpose. 

Ackroyd  v.  Smithson  is  only  on  the  point  of  a  resulting  trust  in 
the  case  of  real  estate  directed  to  be  sold,  and  it  was  at  first 
doubted  whether  the  rule  there  established  applied  to  the  case  of 
money  directed  to  be  laid  out  in  the  purchase  of  land  to  be  settled 
upon  trusts  which  either  wholly  or  partially  failed ,  but  it  has  now 
long  been  decided  that  it  does  so  apply.  Indermaur  Ld.  Cas. 
Eq.  119. 


44  EQUITY   CASES    SIMPLIFIED. 


ELECTION. 

WELBANKS    v.  WILBANKS. 

[18  111.  17.] 

The  first  wife  of  R.  A.  D.  Wilbaiil?;s,  of  Illinois, 
owned  forty  acres  of  land  when  she  died,  leaving  chil- 
dren, Wilbanks  married  again,  and  likewise  went  over 
to  the  majority,  leaving  a  son  by  his  second  wife,  and 
devising  to  his  second  wife  and  his  son  these  forty  acres  ; 
and  to  the  children  by  the  first  wife  he  left,  by  the 
same  will,  certain  legacies.  Of  course,  Wilbanks  had 
no  power  to  make  the  devise  as  to  the  forty  acres,  for 
it  belonged  to  his  first  wife's  children.  So  they 
brought  an  action  against  wife  No.  2  and  sou  to  recover 
the  property.  But  the  court  decided  that  they  must 
either  relinquish  their  claim  to  the  legacies  or  to  the 
forty  acres, — they  could  not  have  both;  they  must 
elect  which  one  benefit  they  would  take. 

"  In  the  general  language  of  the  authorities,"  said 
ScATES,  C.  J.,  "  they  may  not  at  the  same  time  take 
under  the  will  and  contrarv  to  it." 


BRODIE   V.  BARRY. 

[2Ves.  &B.  127.] 


John  Brodie  bequeathed  to  his  niece,  Betty,  a  part  of 
his  estate  situated  in  England  and  Scotland.     To  his 


EQUITY   CASES    SIMPLIFIED.  45 

nephews  and  othei'  iiiece.s  he  also  left  shares  of  his 
property  in  both  countries,  but  this  will  was  so  badly 
drawn  that  on  his  death  it  was  found  that  the  property 
in  Scotland  did  not  pass  under  it,  but  went  to  Betty, 
who  was  his  heir  at  law,  according  to  the  law  of  Scot- 
land. The  other  legatees  very  naturally  objected  to 
her  taking  the  whole  of  the  Scotch  propert}^  and  also 
her  share  of  the  English  property  under  the  will,  and 
the  question  arose  whether  she  should  be  allowed  both 
to  take  the  benefits  given  to  her  by  the  will  and  the 
property,  which  being  thus  informally  dealt  with,  de- 
scended to  her  as  heir  at  law,  or  whether  she  should 
be  i)ut  to  her  election. 

The  court  of  chancery  held  that  the  Scotch  heiress 
could  not  take  both  the  benefits  given  her  by  the  Avill 
and  the  property  which,  being  informally  dealt  with, 
would  descend  to  her  ;  but  that  she  must  elect  between 
them. 


COOPER  V.  COOPER. 

[L.  R.  7  H.  L.  Cas.  58.] 


The  proceeds  of  an  estate  being  given  in  trust  as  one 
Mrs.  Cooper  should  appoint,  she  appointed  the  same 
to  her  three  sons,  her  executors,  etc.,  equally,  subject 
to  a  power  of  revocation  b}'  deed.  She  never  exer- 
cised this  power  of  revocation  ;  but  by  her  will  and 
codicils,  treating  herself  still  as  having  a  disposing 
power  over  the  said  property,  she  gave  it  absolutely 
to  the  eldest  of  the  three  sons,  and  gave  other  benefits 
to  the  children  of  the  second  son  (he  having  in  the  mean- 
time died,  leaving  children),  and  also  to  the  third  son. 
This  suit  was  brought  to  compel  the  third  son  and  tho 


46  EQUITY    CASES    SIMPLIFIED. 

children  of"tlie  second  son  to  elect  between  taking  un- 
der the  settlement  or  under  the  will  and  codicils. 
There  was  no  contention  as  to  the  third  son,  who  ad- 
mitted that  he  must  elect ;  but  the  children  of  the  de- 
ceased son  objected  to  elect,  on  the  ground  that  they, 
taking  their  parents'  interest  under  the  Statute  of  Dis- 
tributions as  next  of  kin,  their  rights  were  of  an  unde- 
fined and  intangible  interest,  and  not  the  subject  of 
election. 

But  the  court  thought  otherwise,  holding  that  the 
Statute  of  Distributions  is  nothing  but  a  will  made  by 
the  Legislature  for  an  intestate,  and  that  (subject  to 
the  claims  of  creditors)  the  title  of  the  next  of  kin  is 
snbstantial  and  complete,  and  that  the  rights  of  these 
children  of  the  second  son  was  exactly  the  same  as 
Avere  the  rights  of  the  third  son,  and  that  they  must 
elect. 

The  doctrine  of  election  originates  iu  inconsistent  or  alternative 
donations,  and  it  consists  in  the  choosing  by  a  person  between  two 
rights,  where  there  is  an  intention  expressed  or  implied  that  they 
shall  not  both  be  enjoyed.  It  rests  upon  the  equitable  grounds 
that  no  mAu  should  be  allowed  to  claim  inconsistent  rights,  and  that 
any  one  who  sets  up  an  interest  under  an  instrument  is  bound  to 
give  full  effect  to  the  document;  he  cannot  enjoy  one  part  of  the 
provisions  which  is  to  his  liking,  and  reject  another  part  which 
is  not  to  his  liking. 

Election  may  be  express  or  implied.  "An  express  election,"  says 
Mr.  BisPHAM,  "  is  where  a  condition  is  annexed  to  a  gift,  a  compli- 
ance with  which  is  distinctly  made  one  of  the  terms  upon  which  the 
gift  alone  can  be  enjoyed.  Thus  if  a  testator  were  to  say,  in  so 
many  words,  that  a  legacy  given  by  his  will  should  only  go  to  the 
legatee,  upon  the  stipulation  that  the  latter  should  convey  a  piece 
of  land,  which  was  his  own,  to  a  third  party,  here  would  be  an  ex- 
press condition,  and  the  legatee  would  have  to  choose  or  elect  be- 
tween the  legacy  and  the  land."  Bisph.  Eq.  296.  On  the  other 
hand,  suppose  A.,  by  will  or  deed,  gives  to  B.  property  belonging 
to  C,  and  by  the  same  Instrument,  gives  other  property  belonging 


EQUITY   CASES   SIMPLIFIED.  47 

to  himself  to  C.  A  court  of  equity  will  hold  C.  to  be  entitled  to  the 
gift  made  to  him  by  A.,  only  upon  the  implied  condition  of  his  con- 
forming to  all  the  provisions  of  the  instrument,  by  renouncing  the 
right  of  his  own  property  in  favor  of  B.  C.  must  consequently 
make  his  choice,  and  this  is  a  case  of  an  implied  election. 

Where  a  person  elects  against  the  instrument,  i.e.,  refuses  to 
give  up  his  own  property,  he  does  not  always  absolutely  forfeit 
the  benefits  given  him  by  it,  but  only  so  much  of  it  as  will  compen- 
sate the  other  party.  Thus,  if  A.  gives  B.  $1,000  and  C.  a  small 
house  of  small  value,  to  which  B.  is  entitled,  and  B.  refuses  to  con- 
form to  the  testator's  will,  he  is  only  bound  to  give  up  so  much  of 
the  $1,000  as  the  house  is  worth,  so  as  to  compensate  C. 

Cooper  V.  Cooper  is  a  recent  case  of  great  importance,  deciding 
as  it  does,  that  persons  taking  interests  under  a  statute  of  distribu- 
tion,'are  subject  to  the  doctrine  of  election  in  the  same  way  as 
those  through  whom  they  claim  would  have  been. 


48  EQUITY    CASES    SIMPLIFIED. 


PERFORMANCE  —  ''  EQUITY  IMPUTES    AN    IN- 
TENTION TO  FULFIL  AN  OBLIGATION" 


WILCOCKS  V.  WILCOCKS. 

[2  Vern.  558;  2  Wh.  &  Tud.  Lcl.  Cas.  Eq.  389.] 

The  plaintiff's  father,  upon  his  marriage,  cove- 
nanted to  purchase  lands  of  the  value  of  £200  per 
annum,  and  settle  the  same  upon  himself  for  life,  and 
to  his  first  and  other  sons  after  his  death.  He  pur- 
chased lands  of  that  value,  but  made  no  settlement  of 
them,  and  they  descended  to  the  plaintiff  as  heir  at 
law.  The  plaintiff  was  not  satisfied  with  this,  but 
asked  for  a  specific  performance  of  the  covenant  out  of 
his  father's  personal  estate.  He  was  not  successful, 
for  the  court  decided  that  the  lands  Avhich  descended 
to  him  must  be  token  as  a  performance  of  the  covenant. 


BLANDY  V.  WIDMORE. 

[1  P.  Wms.  323;  2  Wh.  &  Tud.  Ld.  Cas.  Eq.  391.] 

A  husband,  previous  to  his  marriage,  promised  by 
deed  to  leave  his  intended  wife  £620,  if  she  should 
survive  him.     The  marriage  took  place  and  the  huS- 


EQUITY   CASES    SI.MI'LIKIKD.  49 

band  died  intestate,  but  tlie   wife's  share,  under  tlie 
Statute  of  Distributions,  far  exeeeded  £620. 

The  Chancellor  held  that  the  wife  was  not  entitled  to 
have  the  £620  awd  her  distributive  share,  but  the  dis- 
tributive share  must  be  taken  as  a  satisfaction  or  per- 
formance of  the  covenant.  "  I  will  take  this  cove- 
nant," said  the  Chancellor,  '*  not  to  be  broken,  for  the 
agreement  is  to  leave  the  widow  £620.  Now,  the  in- 
testate in  this  case  has  left  his  widow  £620  and  up- 
wards, which  she,  as  administratrix,  may  take  presently 
upon  her  husband's  death  ;  wherefore  let  her  take  it ; 
but  then,  it  shall  be  accounted  as  in  satisfaction  of  and 
to  include  in  it  her  demand  by  virtue  of  the  covenant, 
so  that  she  shall  not  come  in  first  as  a  creditor  for  the 
£620,  and  then  for  a  moiety  of  the  surplus." 


OLIVER  V.  BRICKLAND. 

[1  Ves.  sr.  1 ;  3  Atk.  420.] 

A  husband  covenanted  to  pay  his  wife  a  certain  sum 
within  two  years  after  his  marriage^  and  if  he  died  his 
executors  should  pay  it.  He  lived  after  the  two  years, 
but  died  intestate  and  without  paying  the  sum  prom- 
ised to  his  wife.  But  his  wife's  distributive  share  was 
larger  than  the  sum  covenanted  for.  Nevertheless,  it 
was  held  that  the  widow  was  entitled  both  to  the 
money  under  the  covenant  and  to  her  distributive 
share  of  the  residue.     There  was  a  breach  of  the  cove- 


50  EQUITY    CASES    SIMPLIFIED, 

nant  before  the  death  of  the  husband,  and   from  the 
moment  of  the  breach  a  debt  accrued  to  the  wife. 

The  doctrine  of  performance  is  founded  on  the  maxim  of  equity: 
Equity  imputes  an  intention  to  fulfil  an  obligation,  i.e.,  when  a  per- 
son covenants  to  do  an  act,  and  he  does  some  other  act  that  is 
capable  of  being  applied  towards  a  performance  of  this  covenant, 
he  will  be  presumed  to  have  had  the  intention  of  performing  his 
covenant  when  he  did  the  other  act.  Snell,  Eq.  232.  The  cases  aris- 
ing under  this  rule  are  divisible  into  two  classes. 

1 .  Where  there  is  a  covenant  to  purchase  and  settle  lands,  and  a 
purchase  of  lands  is  made,  hut  is  not  expressed  to  be  in  pursuance  of 
such  covenant,  and  no  settlement  of  them  is  ??iade.  —  Wilcocks  v.  Wil- 
cocks  decides  what  will  be  the  effect  of  this—  the  purchase  of  the 
lands  and  their  descent  by  law  to  the  covenantee  will  be  deemed  a 
performance  of  the  covenant.  In  Wilcocks  v.  Wilcocks  it  will  be 
seen  that  the  lands  there  purchased  were  of  equal  value  with  those 
covenanted  to  be  settled;  but  it  has  also  been  decided  that  even 
where  the  lands  purchased  are  of  less  value,  they  shall  be  considered 
as  a  part  performance  of  the  covenant.  Lechmere  v.  Earl  of  Car- 
lisle, 3  P.  Wms.  211.  It  should  also  be  noted  here  that  (1)  where  the 
covenant  points  to  a  future  purchase,  it  will  not  be  presumed  that 
lands,  of  which  the  covenantor  was  then  seized,  were  intended  to  be 
taken  in  performance  of  it,  and  (2)  property  of  a  different  nature 
from  that  covenanted  to  be  purchased,  will  not  be  presumed  to  be  in- 
tended as  a  performance. 

2.  Where  there  is  a  covenant  to  leave  personal  property,  and  the 
covenantee  recovers  a  share  under  anintestacy.  —  Two  rules  have  been 
established  as  to  this,  viz. :  — 

(a.)  Where  the  covenantor's  death  occurs  at  or  before  the  time 
when  the  obligation  accrues,  the  distributive  share  is  a  performance 
of  the  covenant.     Blandy  v.  Widraore  illustrates  this. 

(6.)  Where  the  death  occurs  after  the  obligation  accrues,  the  dis- 
tributive share  is  not  a  performance.  On  this  point  see  Oliver  v. 
Brickland. 

It  should  be  mentioned  that  it  has  been  decided  that,  although  a 
distributive  share  on  an  intestacy  will  be  taken  as  performance  of  a 
covenant,  yet  a  gift  by  will  of  a  sum  of  money  as  a  residue  will  not 
so  operate  per  se,  because  it  imports  bounty.     And  where  the  cove- 


EQUITY    CASES    SIMPLIFIED.  51 

naut  is  not  to  pay  a  gross  sum,  but  the  interest  of  a  sum  of  money 
for  life  or  a  mere  life  annuity,  the  principle  upon  which  Blandy 
V.  Widmore  was  decided  does  not  apply.  Indermaur  Ld.  Cas. 
Eq.  105. 


52  EQUITY   CASES   SIMPLIFIED. 


SATISFACTION. 

TAXBOT  V.  DUKE  OF   SHREWSBURY. 

[Free.  Ch.  392;  2  Wh.  &  Tud.  Ld.  Cas.  Eq.  379,] 

In  this  case  it  was  decided  that  if  a  debtor,  without 
taking  notice  of  the  debt,  bequeaths  a  sum  as  great  as 
or  greater  than  the  debt  to  his  creditor,  this  is  a  satis- 
faction  ;  but  it  is  not  a  satisfaction  if  it  is  bequeathed 
on  a  contingency,  or  if  the  bequest  is  less  than  the 
debt. 


CHANCEY'S  CASE. 

[1  P.  Wms.  408;  2  Wh.  &  Tud.  Ld.  Cas.  Eq.  380.] 

An  old  gentleman  who  owed  his  maid-servant  a  mat- 
ter of  £100  for  wages  gave  her  a  bond  for  that  amount. 
The  old  gentleman  died  without  paying  the  bond,  but 
by  his  will  he  gave  the  maid-servant  a  legacy  of  £500 
"  for  her  long  and  faithful  service,"  so  his  will  read. 
The  will  also  directed  that  all  his  debts  and  legacies 
should  be  paid. 

The  maid-servant  claimed  both  the  amount  of  the 
bond  and  the  legacy,  and  the  Chancellor  decided  that 
she  should  have  both,  on  the  ground  that  the 
legacy  was  not  a  satisfaction  of  the  debt  due  on  the 
bond.     The  court  said  that  the  testator,  by  the  express 


EQUITY    CASES    SIMPLIFIED.  53 

words  of  his  will,  had  ordered  that  all  his  debts  and 
legacies  should  be  paid,  and  the  £100  being  a  debt  and 
the  £500  being  a  legacy,  it  was  as  strong  as  if  he  had 
directed  that  both  the  bond  and  legacy  should  be  paid. 


STRONG  V.  WILLIAMS. 

[12  Mass.  391.] 

Mary  Strong  was  Mr.  Little's  housekeeper,  who 
gave  her  a  bond  for  $333  and  a  written  promise  to  pay 
her  $20  a  year.  In  his  will  he  bequeathed  her  a  gen- 
eral legacy  of  $300,  and  a  specific  legacy  of  certain 
g-oods  and  chattels  of  the  value  of  $745.  After  Mr. 
Little's  death,  Mary  brought  a  suit  on  the  bond,  and 
his  executors  argued  that  the  legacies  were  a  satisfac- 
tion of  the  debt. 

But  the  court  did  not  agree  with  them.  The  judges 
held  that  the  general  legacy  was  not  a  satisfaction  of 
the  debt,  because  it  was  less  than  the  amount  of  the 
debt,  and  that  the  specific  legacy  was  not  a  satisfaction 
because  it  was  of  a  different  nature.  So  Mary  received 
her  legacies  and  was  paid  the  bond  into  tha  bargain. 


HOOLEY  V.  HATTON. 

[Bro.  C.  C.  390  n;  2  Wh.  &  Tud.  Ld.  Cas.  Eq.  346.] 

Lady    Finch,  by    her    will,  gave    her    maid,  Lydia 
Hooley,  a  legacy  of  £500,  and  afterwards,  by  a  codi- 


54 


EQUITY    CASES    SIMPLIFIED. 


cil,  a  legacy  of  £1,000,  and  the  question  was  whether 
the  last  legacy  alone  passed  or  the  legatee  should  have 
both.  The  court  held  that  Lydia  Avas  entitled  to  both 
legacies  ;  but  that  if  a  legacy  of  the  same  amount  is 
given  twice  for  the  same  cause,  and  in  the  same  instru- 
ment, and  in  the  same,  or  nearly  the  same,  words, 
then  it  will  not  be  double  ;  but  where  in  different  writ- 
ings there  is  a  bequest  of  equal,  greater,  or  less  sums, 
the  legatee  will  be  entitled  to  all  of  them. 


EX  PARTE  PYE. 

[18  Ves.  140;  2  Wh.  &  Tud.  Ld.  Cas.  Eq.  365.] 

This  case  is  the  leading  authority  for  these  rules  ;  — 

1.  That  where  a  parent  gives  a  legacy  to  a  child, 
not  stating  the  purpose  with  reference  to  which  he 
gives  it,  he  is  understood  to  give  a  portion  ;  and  in 
consequence  of  the  leaning  against  double  portions,  if 
the  parent  afterwards  advances  a  portion  on  the  mar- 
riage of  the  child,  the  presumption  arises  that  it  was 
intended  to  be  a  satisfiiction  of  the  legacy  either  wholly 
or  in  part ;  and  this  applies  where  a  person  puts  him- 
self in  loco  parentis} 

2.  But  no  such  presumption  arises  in  the  case  of  a 
stranger  or  of  a  natural  child,  where  the  donor  has  7iot 
put  himself  w  loco  parentis,  unless  the  subsequent 
advance  is  proved  to  be  for  the  very  purpose  of  satisfy- 


^  In  the  place  of  the  parent. 


EQUITY   CASES    SIMPLIFIED.  55 

ing  the  legacy  ;   and,  therefore,  the  legatee  will  be  en- 
titled to  both. 

Satisfaction  is  defined  as  tlie  giving  by  a  person  liable  to  some 
claim  of  the  donee,  of  something  different  from  the  subject  of  such 
claim,  but  intended  in  substitution  thereof.  Performance  {ante, 
p. 48)  appears  at  first  sight  to  be  the  same  as  satisfaction,  but  a  closer 
examination  of  the  two  doctrines  will  show  that  the  distinction  is 
obvious  enough.  That  distinction  has  been  stated  to  be  that  "  satis- 
faction implies  the  substitution  or  gift  of  something  different  from 
the  thing  agreed  to  be  given,  but  equivalent  to  it  in  the  eye  of  the 
law,  while  in  cases  of  performance  the  thing  agreed  to  be  done  is 
in  truth  wholly  or  in  part  performed."  The  cases  on  the  doctrine 
of  satisfaction  may  be  divided  into  four  classes:  — 
I.  Satisfaction  of  debts  by  legacies. 

II.  Satisfaction  of  legacies  by  subsequent  legacies. 

III.  Satisfaction  of  legacies  by  portions. 

IV.  Satisfaction  of  portions  by  legacies. 

I.  Satisfaction  of  debts  by  legacies.  —  The  general  rule  is  as  stated 
in  Talbot  v.  Duke  of  Shrewsbury,  that  if  a  man,  by  his  will,  leaves 
a  creditor  a  sum  of  money  as  great  or  greater  than  his  debt,  with- 
out saying  anything  about  the  debt,  the  legacy  will  be  a  satisfaction 
of  the  debt,  and  the  creditor  cannot  take  the  legacy  and  then  under- 
take to  collect  the  debt.  The  maxim  in  such  cases  is  debitor  non 
prcesumitnr  donare,  that  is  to  say  a  debtor  is  not  presumed  to  be 
making  gifts,  he  is  rather  paying  his  debts  when  he  leaves  a  legacy 
to  a  creditor.  But  this  presumption  is  not  very  strongly  favored 
by  the  courts,  and  therefore  it  is  not  surprising  to  tind  several  excep- 
tions—  six  in  all  —  where  the  bequest  is  held  not  a  satisfaction  of 
the  debt.     These  are :  — 

(a.)  Where  the  legacy  is  less  than  the  debt.  Here  it  will  not  go 
in  satisfaction  even  j)j-o  tanto.     Strong  v.  Williams  illustrates  this. 

(6.)  Where  the  debt  was  contracted  subsequently  to  the  making 
of  the  will.  Here  it  is  obvious  the  testator  could  have  had  no  in- 
tention of  making  any  satisfaction  of  what  was  not  at  the  time  in 
existence. 

(c.)  Where  the  will  expressly  directs  that  the  debts  and  legacies 
shall  be  paid.     This  was  the  doctrine  of  Chancey's  case. 

(d)  Where  the  time  fixed  for  the  payment  of  the  legacy  is  differ- 
ent from  the  time  when  payment  of  the  debt  is  deraandable.     In  a 


56  EQUITY   CASES    SIMPLIFIED. 

well-known  case  (Clark  v.  Sewell,  3  Atk.  9G),  there  was  a  legacy 
given  to  a  creditor  far  exceeding  tLie  amount  of  the  debt,  but,  by 
the  will,  all  the  legacies  were  directed  to  be  paid  one  month  after 
the  testator's  decease,  and  it  was  held  that  the  fact  of  the  legacies 
not  being  payable  till  after  a  month,  prevented  the  satisfaction 
which  would  otherwise  have  taken  place. 

(«.)  Where  the  legacy  is  contingent  or  uncertain. 

(/.)  Where  the  legacy  is  not  of  the  same  nature  as  the  debt. 
The  specific  legacy  in  Strong  v.  Williams  illustrates  this  exception. 

II.  Satisfaction  of  legacies  by  subsequent  legacies.  —  Two  classes  of 
cases  occur  under  this  head,  (a)  where  the  legacies  are  by  the  same 
instrument,  (b)  where  the  legacies  are  by  different  instruments. 

(a.)  Where  legacies  of  quantity  are  given  by  the  same  instru- 
ment simpliciter  (i.e.  without  any  expression  of  the  motive  of  the 
gift),  and  are  of  equal  amount,  one  only  will  be  good.  The  leading 
American  case  on  this  point  is  Dewitt  v.  Yates,  10  Johns.  15G. 
Here  a  father  bequeathed  $250  to  the  children  of  his  daughter, 
Maria,  payable  in  sums  of  .$50  to  each  on  coming  of  age,  or  marry- 
ing. By  a  subsequent  clause  of  the  same  will,  he  devised  one-half 
of  one  of  his  farms  to  his  son-in-law,  directing  him  to  pay  the  chil- 
dren of  his  daughter,  Maria,  $250,  on  each  coming  of  age  or  mar- 
rying. Chancellor  Kext  decided  that  the  second  legacy  was  a 
mere  repetition  of  the  first,  and  that  the  children  were  not  entitled 
to  both.  On  the  other  hand,  where  the  legacies  are  of  unequal 
amount,  they  are  considered  cumulative. 

(h.)  Where  legacies  are  given  by  different  instruments  to  the 
same  person  simpliciter,  the  court  considering  that  he  who  has  given 
more  than  once  means  more  than  one  gift,  permits  the  legatee  to 
take  both.     But  to  this  rule  there  are  two  exceptions :  — 

(1.)  If  the  same  motive  is  expressed  and  the  same  sum  given 
in  both  instruments,  the  legatee  can  only  take  one. 

(2.)  If  the  legacy  is  a  specific  thing  the  legatee  can  only  take 
one,  though  it  is  given  twice.  Thus  if  A.  by  one  will  gives  B. 
a  certain  ruby  ring,  and  by  a  subsequent  will  also  gives  him  the 
ruby  ring,  here,  of  course,  there  can  be  no  repetition  of  the  gift. 

It  is  important  to  inquire  whether  extrinsic  evidence  can  be 
given  to  show  whether  a  testator  intended  a  legacy  to  be  by  way  of 
augmentation  or  as  a  repetition,  as  if  so  the  rules  laid  down  in  the 


EQUITY    CASKS    SIMPLIFIED.  57 

above  cases  might  often  be  altered.  It  is  establishetl  on  this 
point  tliat  where  the  court  raises  the  presumption  against  double 
legacies,  it  will  receive  parol  evidence  to  show  that  the  testator 
actually  intended  the  double  gift  he  has  expressed,  for  that  but  re- 
buts the  presumption  of  the  court,  and  supports  the  apparent  inten- 
tion of  the  will ;  but  where  the  court  raises  no  presumption,  as 
where  legacies  are  given  by  different  instruments,  it  will  not  admit 
parol  evidence  to  show  testator  only  meant  the  legatee  to  take  one, 
for  that  would  be  to  contradict  the  will.  ludermaur  Ld.  Cas. 
Eq.  100. 

III.-IV.  iSalisfaction  or  more  property  ademption  of  legacies  by 
portions,  and  satisfaction  of  portions  by  legacies. —  The  case  of  Ex  parte 
Pye  lays  down  the  law  in  these  cases  so  clearly  that  little  comment 
is  needed  here.  It  may  be  added,  however,  that  it  is  important  to 
remember  the  great  difference  that  exists  in  satisfaction  in  the  case 
of  portions  on  the  one  hand,  and  in  the  case  of  legacies  to  creditors 
on  the  other ;  for  in  the  first  case,  equity,  leaning  against  double 
portions,  is  in  favor  of  the  satisfaction,  so  that  where  there  is  a 
legacy  to  or  a  settlement  on  a  child,  and  a  subsequent  advancement 
on  the  marriage  of  such-child,  such  advancement  will  be  a  satisfac- 
tion altogether,  if  of  the  same  or  a  greater  amount,  and  if  of  a  less 
amount  it  will  be  a  satisfaction  pro  tanto,  but  in  the  second  case, 
as  we  have  seen,  it  is  just  the  opposite,  for  equity  will  take  hold  of 
any  slight  circumstance  as  in  Chancey's  case,  or  Strong ^?.  Williams, 
to  rebut  the  presumption  of  satisfaction  that  would  otherwise  arise. 

The  principle  upon  which  the  court,  leans  against  double  por- 
tions is  founded  upon  the  idea  that  the  parent  or  person  in  loco 
parentis  &xes  the  amount  of  the  pQrtion  or  provision  for  the  child, 
and  that  any  benefit  he  afterwards  gives  is  on  account  of  the  obliga- 
tion which  he  would  otherwise  have  discharged  at  his  death,  and 
this  explains  why  the  doctrine  has  no  operation  in  the  case  of  per- 
sons towards  whom  the  testator  occupied  no  such  relationship. 

Students  are  apt  to  get  confused  between  cases  of  ademption  and 
satisfaction,  and  the  matter  has  been  well  explained  thus:  "  When 
the  will  is  made  first,  and  the  settlement  afterwards,  it  is  always 
treated  as  a  case  of  what  is  called  ademption  —  that  is  to  say,  the 
benefits  given  by  the  settlement  are  considered  to  be  an  ademption 
of  the  same  benefits  given  to  the  same  child  by  the  will.  With 
reference  to  cases  *  *  *  of  a  previous  settlement  and  a  subse- 
quent will  *  *  *  it  is  now  quite  settled  that  there  is  no  differ- 
ence between  the  two  cases,  beyond  the  verbal  difference  that  the 
terra  satisfaction  is  used  where  the  settlement  has  preceded  the 


58  EQUITY    CASES    SIMPLIFIED. 

will,  and  the  term  ademption  where  the  will  has  preceded  the  set- 
tlement. In  substance  there  is  no  distinction  between  the  principles 
applied  to  the  two  classes  of  cases."  Coventry  v.  Chichester,  2  H. 
&  M.  159. 

With  regard  to  the  admissibility  of  extrinsic  evidence  on  the 
point  of  satisfaction,  the  rule  against  double  portions  is  a  presump- 
tion of  law,  and  like  other  presumptions  of  law,  may  be  rebutted 
by  evidence  of  extrinsic  circumstances.  To  vary  or  contradict  the 
plain  effect  of  a  document  where  there  is  no  presumption  of  law 
contrary  to  that  effect,  extrinsic  evidence  is  not  admissible;  but  to 
confirm  the  plain  effect  of  a  document,  where  there  is  a  presump- 
tion of  law  contrary  to  that  effect,  extrinsic  evidence  is  admissible. 
SnellEq.  257-259;  Indermaur  Ld.  Cas.  Eq.  104. 


EQUITY    CASES    SIMPLIFIED.  5i> 


ADMINISTRATION  OF  ASSETS. 


DUKE  OF  ANC ASTER  v.  MAYER. 

[1  Bro.  C.  C.  45i;  1  Wh.  &  Tud.  Ld.  Cas.  Eq.  631.] 

This  case  is  the  leading  authority  for  the  rule  that 
the  general  personal  estate  is  first  liable  to  the  pay- 
ment of  the  debts  of  the  testator,  unless  exempted  by 
express  words  or  by  necessary  implication. 

When  a  man  dies  leaving  different  kinds  of  property,  and  like- 
wise some  debts,  it  is  a  matter  of  some  importance  to  his  heirs  and 
devisees  which  of  his  property  the  debts  are  to  be  paid  out  of. 
For  very  good  reasons  the  courts  have  established  the  following 
order  in  the  liability  to  debts  pf  the  different  properties  belonging 
to  the  testator  at  the  time  of  his  decease. 

1.  The  general  personal  estate.  This  was  held  in  Duke  of  An- 
caster  v.  Mayer.  The  general  personal  estate  is  also  the  primary 
fund  for  the  payment  of  legacies. 

2.  Any  estate  devised  for  the  particular  purpose  of  paying 
debts. 

3.  Real  estates  which  have  descended  to  the  heir,  but  not 
charged  with  debts. 

4.  Real  estate  devised  to  particular  persons,  but  charged  with 
the  payment  of  debts. 

5.  General  legacies. 

6.  Specific  and  demonstrative  legacies  and  real  estate  devised 


60  EQUITY    CASES    SIMPLIFIED. 

specitically  or  by  way  of  residue,  and  not  being  at  tlie  time  charged 
with  debts. 

7.  Property  over  which  the  person  whose  estate  is  being  admin- 
istered has  exercised  a  general  power  of  appointment. 

The  reasons  for  this  order  of  things  have  been  well  put  by  a 
learned  writer.  "  The  order  in  which  the  various  portions  of  a  tes- 
tator's estate  are  applied  for  the  payment  of  his  debts  has  been  es- 
tablished out  of  a  regard  to  the  testator's  intention.  The  general 
personal  estate  was  long  the  only  fund  to  which  those  creditors 
who  had  not  specialties  binding  the  heir  could  resort,  and  besides, 
cash,  stock  and  movables  came  first  to  hand,  and  are  the  most 
ready  applicable,  and  are  the  funds  out  of  which  people  in  their 
lifetime  usually  pay  their  debts.  Next  after  the  general  personal 
estates,  any  special  fund  set  apart  by  the  testator  would  naturally 
come.  The  heir,  not  being  a  beneficiary  within  the  testator^s  inten- 
tion, lands  descended  to  him  would  properly  follow  next  in  the 
order  of  application.  But  lands  charged  with  the  payment  of 
debts  would,  of  course,  be  applicable  before  legacies  bequeathed 
or  property  specifically  given  and  not  so  charged.  Again,  there 
seems  a  more  direct  intention  to  benefit  a  specific  devisee  or  legatee 
than  to  benefit  a  mere  pecuniary  legatee.  Pecuniary  legacies  must, 
therefore,  go  unpaid  rather  than  specific  devises  or  bequests  be 
touched.  These,  however,  must  be  resorted  to  for  the  payment  of 
debts  as  a  last  resource,  whilst  lands  over  which  the  testator  has 
exercised  a  general  power  of  appointment  are,  in  favor  of  creditors, 
considered  as  supplementary  applicable  after  the  whole  of  the  tes- 
tator's own  property  has  been  exhausted."  Wms.  Real.  Assets, 
108. 

In  conclusion  it  should  be  observed  that  the  general  personal 
estate  of  the  testator  is  not  the  primary  fund  for  the  payment  of 
debts,  in  four  cases,  viz. : 

1.  Where  it  is  exempted  by  express  words. 

2.  Where  it  is  exempted  by  the  testator's  manifest  intention:  and 
on  this  point  the  fact  that  the  testator  has  charged  his  real  estate  is 
not  alone  sufficient,  but  he  must  also  have  shown  that  it  was  his 
purpose  that  the  personal  estate  should  not  be  applied. 

3.  Where  the  debt  forming  the  charge  or  incumbrance  is  in  its 
own  nature  real,  e.y.,  a  jointure. 


EQUITY    CASKS    SIMPLIFIED.  61 

4.  Where  the  debt  was  not  contracted  by  the  pei'son  whose  estatfe 
is  being  administered,  but  by  some  one  else  from  whom  he  or  his 
vendor  took  it,  as  in  the  case  of  a  mortgage  created  by  an  an- 
cestor. 


62  EQUITY    CASES    SIMPLIFIED. 


MARSHALLING  ASSETS. 


ALDRICH  V.  COOPER. 

[8  Ves.  308;  2  Wh.  &Tud.  Ld.  Cas.  Eq.  228.] 

At  common  law  specialty  creditors  (^.e.,  creditors 
whose  rights  were  evidenced  by  contracts  under  seal) 
could  collect  their  debts  from  either  the  real  or  personal 
estate  of  the  debtor,  while  simple  contract  creditors 
(t.e.,  those  who  had  no  sealed  document  to  show  for  their 
claims)  were  confined  to  the  debtor's  personal  estate. 
This  distinction  is  now  abolished  by  statute  ;  but  in  the 
days  when  the  old  rule  was  in  force,  John  Cooper 
died,  leaving  real  and  personal  estate  ;  and  he  also  left 
some  specialty  creditors  and  a  simple  contract  debtor 
named  Aldrich.  The  specialty  creditors  got  their 
hands  on  the  personal  estate  of  the  late  Cooper  and 
paid  themselves  out  of  it,  and  the  result  was  that  Aid- 
rich  found  nothing  that  he  could  realize  on,  for  the 
land  was  not  subject  to  his  simple  contract  debt. 

However,  he  found  help  in  the  Court  of  Chancery, 
which  held  that  he  was  entitled  to  stand  in  the  place  of 
the  specialty  creditors,  so  far  as  the  personal  estate  had 
been  taken  aivay  from  him  by  the  siwcialty  creditors. 
"A  person,"  said  the  Chancellor,  '♦  having  two  funds 
to  satisfy  his  demands  shall  not,  by  his  election,  disap- 
point a  party  who  has  only  one  fund." 

The  order  in  which  assets  are  applied  in  the  payment  of  debts,  as 
stated  in  thr  previous  case  (Duke  of  Ancaster  v.  Mayor,  ante,  p.  50) 
only  regulates  their  administration  as  between  the  testator's  own 


EQUITY    CASES    SIMPLIFIED.  63 

representatives  and  devisees,  and  does  not  affect  the  right  of  the 
creditors  themselves  to  resort  in  the  first  instance,  to  all  or  any  of 
the  funds  to  which  their  claims  extend.  But  the  Court  of  Chancery 
in  dealing  with  such  creditors,  has  established  the  principle  that  a 
party  having  two  funds  to  satisfy  his  demand,  shall  not,  by  electing 
to  take  a  particular  fund,  disappoint  another  creditor  who  has  only 
one  fund  to  resort  to.  Under  the  common  law  it  sometime  hap- 
pened that  A.,  having  a  debt  which  he  had  a  right  lo  collect  out  of 
B.,  real  or  personal  estate  as  he  chose,  elected  to  take  it  out  of  B.'s 
personal  estate,  and  thereby  left  nothing  for  C,  whose  claim  was 
only  good  as  against  personal  estate.  In  such  a  case  equity  put 
C.  in  the  shoes  of  A.,  as  to  his  claim.  This  was  called  the  marshal- 
ling of  assets. 

Of  late  years,  particularly  in  the  United  States  since  the  law  has 
put  all  kind  of  debts  on  practically  the  same  footing,  the  necessity 
for  marshalling  assets  does  not  often  arise.  It  is,  however,  some- 
times applied  for  the  benefit  of  junior  encumbrancers  of  property, 
and  for  the  protection  of  sureties. 


*>4  EQUITY    CASES    SI3IPLIF1ED. 


EQUITABLE  MORTGAGES. 


RUSSELL  V.  RUSSELL. 

[1  Bro.  C.  C.  269 ;  1  Wh.  &  Tud.  Ld.  Cas.  Eq.  674.] 

Just  a  century  ago,  a  citizen  of  London  wanted  to 
borrow  some  money,  and  succeeded  in  getting  a  loan 
from  one  Russell,  in  whose  hands,  as  a  security,  he 
placed  a  lease.  The  citizen  afterwards  became  bank- 
rupt, and  Mr.  Russell  set  up  a  right  to  have  the  lease- 
hold estate  sold  to  satisfy  his  debt,  claiming  that  the 
deposit  of  the  document  with  him  constituted  an  equit- 
able mortgage  of  the  leasehold.  The  assignees  in 
bankruptcy  set  up,  on  their  part,  the  fourth  section  of 
the  Statute  of  Frauds,  which  provides  that  no  action 
should  be  brought  on  any  contract  for  the  sale  of  lands, 
etc.,  or  any  interest  in  or  concerning  them,  unless  the 
agreement  was  in  writing,  and  wiiere,  said  they,  is 
there  any  writing  here,  —  nothing  was  done  but  a  sim- 
ple deposit  of  the  lease  in  Mr.  Russell's  hands. 

But  the  court  held  that  the  deposit  of  the  lease  con- 
stituted an  equitable  mortgage,  and  that  the  interest 
should  be  sold  to  satisfy  Mr.  Russell's  claim. 

The  general  topic  of  mortgages  does  not  at  this  day  belong  pecu- 
liarly to  a  work  on  equity,  as  the  courts  of  law  now  recognize  all 
those  rights  of  the  mortgagor,  which  in  former  times  could  only  be 
protected  by  the  Court  of  Chancery.  For  a  concise  history  of  the 
rise  of  the  equitable  doctine  relative  to  mortgages,  and  its  triumph 
in  the  courts  of  law,  the  student  is  referred  to  Sncll,  Eq.,  cap.  16, 
or  Bisph.  Eq.,  cap.  7. 


EQUITY   CASES   SIMPLIFIED.  65 

Russell  V.  Russell  illustrates  the  doctrine  of  equitable  mortgages. 
The  principle  upon  which  they  are  recognized  appears  to  be  that 
they  were  allowed  necessarily  from  the  nature  of  the  case,  for  a 
court  of  law  could  not  assist  a  person  who  had  pledged  his  deeds 
to  recover  them  back,  as  the  answer  to  such  an  action  would  have 
been  that  they  were  pledged,  and  that  the  party  who  pledged  them 
had  no  right  to  them  until  he  paid  the  money;  and  again,  if  the  per- 
son came  into  equity  to  recover  the  deeds,  he  would  have  been  told, 
under  the  maxim,  "  He  who  seeks  equity  must  do  equity,"  that  he 
must  repay  the  money  before  he  could  have  the  deeds. 

The  doctrine  of  equitable  mortgages  has  been  disapproved  of  in 
Kentucky,  Ohio,  and  Pennsylvania. 

5 


(J6  EQUITY    CASES    SIMPLIFIEt). 


TENANCY  IN    C03IM0N —'' EQUALITY  IS 
EQUITY.  " 


LAKE  V.GIBSON  — LAKE  v.  CRADDOCK. 

[lEq.  Cas.Ab.294,  pl.3;  1  Wh.  &Tud.  Lcl.  Cas.  Eq.  177  ;  SP.Wms. 
158;   1  Wh.  &  Tiul.  Ld.  Cas.  Eq.  179.] 

Five  persons  purchiised  a  place  called  West  Thorock 
Level,  from  the  Commissioners  of  Sewers  and  the  con- 
veyance was  made  to  them  as  joint-tenants  in  fee,  but 
they  contributed  rateably  to  the  purchase,  which  was 
for  the  purpose  of  draining  the  Level.  Several  of 
them  died.  The  court  decided  that  they  were  tenants 
in  common  in  equity,  for  the  purchase  was  for  the  pur- 
pose of  a  joint  undertaking,  and  though  one  of  these 
five  persons  deserted  the  partnership  for  thirty  years, 
he  was  let  in  again  on  terms.  "  This,'.'  said  the  Chan- 
cellor, "  was  plainly  a  tenancy  in  common  in  equity, 
though  otherwise  at  law. 

It  is  a  rule  of  law  that  where  two  or  more  purchasers  take  a  con- 
veyance to  themselves  and  their  heirs,  they  are  joint  tenants,  and 
upon  the  death  of  one  of  them  the  estate  will  go  to  the  survivor. 
The  maxim  being  jtis  accrescendi  pmfertur  ultimce  voluntatis  except, 
indeed,  in  the  case  of  merchants,  where  there  has  always  been  an 
exception  to  the  rule  of  survivorship,  for  jus  accrescendi  inter  mer- 
catores  pro  beneficio  commercii  locum  non  habet  —  for  the  benefit  of 
commerce  the  right  of  survivorship  has  no  place  among  merchants. 

In  accordance  with  the  maxim,  "  equity  follows  the  law,"  it  was 
early  held  in  the  Court  of  Chancery,  that  notwithstanding  the  lean- 
ing of  the  court  to  a  tenancy  in  common,  in  preference  to  a  joint 
tenancy,  an  interest  simply  given  to  two  or  more,  either  by  way  of 
legacy  or  otherwise,  is  joint,  unless  there  are  words  of  severance, 
as  "  equally  among,"  or  words  to  the  like  effect,  or  unless  an  infer- 
ence of  that  sort  arises  in  equity  from  the  nature  of  the  transaction, 
as  in  partnership,  etc.     Morley  v.  Bird,  3  Ves.  631.     But  there  is 


EQUITY    CASES    SIMPLIFIED.  67 

another  maxim  of  equity,  viz. :  "Equality  is  equity."  Acting  on  this 
courts  of  equity  lean  strongly  against  joint  tenancy  with  its  one- 
sided right  of  survivorship;  for  though  each  joint  tenant  has  an 
equal  chance  of  being  the  survivor  and  getting  the  whole,  yet  this 
is  only  an  equality  in  point  of  chance,  for  as  soon  as  one  dies  there 
is  an  end  to  the  equality  between  them.  And,  therefore,  the  equal 
certainty  of  having  an  absolute  equal  share,  or  a  share  proportioned 
to  the  amount  of  the  purchase  money  advanced,  is  considered  the 
far  higher  and  truer  equity  than  an  equal  chance  of  having  the 
whole  or  none  of  the  property.  Snell,  Eq.  133..  And,  therefore, 
courts  of  equity  will  lay  hold  of  any  circumstances  from  which  it 
can  reasonably  be  implied  that  a  tenancy  in  common  was  intended. 
In  the  following  cases  the  parties  will  be  held  tenants  in  com- 
mon: — 

1.  Where  the  purchase  money  is  paid  in  unequal  proportions. 

2.  Where  money  is  advanced  in  equal  or  unequal  proportions  by 
persons  who  take  a  mortgage  to  themselves  jointly. 

3.  In  partnerships  and  commercial  transactions,  —  following,  of 
course,  the  rule  of  law  in  this  instance.  But,  notwithstanding  the 
leaning  of  equity  to  a  tenancy  in  common  as  giving  really  the  true 
equality,  yet  if  property,  instead  of  having  been  j)Mrc/i«se(Z  for  a  part- 
nership, has  been  devised  to  the  partners  as  joint  tenants,  and  used 
by  them  for  partnership  purposes,  they  will  still  be  joint  tenants, 
and  not  tenants  in  common,  unless  by  express  agreement,  or  by 
their  course  of  dealing  with  it  for  a  long  period,  an  intention  to 
sever  the  joint  tenancy  may  be  inferred. 

In  those  cases  in  which  equity  considers  a  tenancy  in  common 
to  be  created,  the  survivor  is  treated  as  a  trustee  for  the  represen- 
tatives of  the  deceased  person,  an  implied  trust  being  created, 
founded  upon  an  unexpressed  but  presumable  intention.  Indermaur 
Ld.  Cas.  Eq.  41. 


68  EQUITY    CASES    SIMPLIFIED. 


PENALTIES  AND  FORFEITURES. 


SLOMAN  V.  WALTER. 

[1  Bro.  C.  C.  418;  2  Wh.  &  Tud.  Ld.  Cas.  Eq.  1094.] 

Sloman  and  Walter  were  partners  in  the  Chapter 
Coffee  House,  and  it  had  been  agreed  between  them 
that  Walter  should  have  the  use  of  a  particular  room 
when  he  wanted  it.  To  secure  this  agreement  Sloman 
gave  Walter  his  bond  for  £500.  Not  long  afterwards 
Walter  notified  his  partner  that  he  desired  the  room, 
but  he  would  not  let  him  have  it.  Walter,  therefore, 
brought  an  action  at  law  on  the  bond  for  the  pen- 
alty. Sloman  now  applied  to  the  Court  of  Chancery 
to  have  Walter  enjoined  from  collecting  the  amo-unt 
of  the  bond  over  and  above  the  actual  damage  sus- 
tained. 

The  Court  of  Chancery  decided  that  Sloman  was  en- 
titled to  an  injunction,  because  the  rule  is  that  where 
a  penalty  is  inserted  merely  to  secure  the  enjoyment 
of  a  collateral  object,  the  enjoyment  of  the  object  is 
considered  as  the  principal  intent  of  the  deed,  and  the 
penalty  only  as  additional,  and  to  secure  the  damages 
really  incurred. 


EQUITY    CASES    SIMPLIFIED.         '  69 

PEACHEY  V.  DUKE  OF   SOMERSET. 

[1  Str.  447;  2  Wh.  &  Tud.  Ld.  Cas,  Eq.  1082  ] 

A  tenant  of  the  Duke  of  Somerset  made  leases  of 
the  property  he  held,  felled  timber,  and  dug  stones 
from  it.  and  did  other  acts  which,  at  law,  constituted  a 
forfeiture  of  his  holding.  Finding  himself  in  this 
pickle,  the  tenant  asked  the  Court  of  Chancery  to  relieve 
him  from  the  forfeiture,  if  he  should  make  compensa- 
tion to  the  landlord  for  what  he  had  done. 

But  the  court  answered  that  it  could  not  help  him. 

As  there  was  no  actual  damage  done,  the  court  could 

^  not  decree  any  compensation,  and  the  power  to  give 

compensation  was  the  only  ground  on  which  it  could 

exercise  j  urisdiction . 

Acting  on  the  equitable  maxim :  "  Equity  looks  to  the  intent 
rather  than  to  the  form,"  courts  of  equity  frequently  relieve 
against  penalties  and  forfeitures  which  at  law  the  parties  have 
incurred  by  their  acts  or  contracts.  The  relief  of  this  kind,  as 
to  penalties,  is  given  as  a  rule  in  two  cases,  (1)  where  com- 
pensation can  be  made.  Here  if  the  penalty  is  to  secure  the 
mere  payment  of  money,  courts  of  equity  will  relieve  the  party  on 
his  paying  the  principal  and  interest;  (2)  where  the  penalty  is 
to  secure  the  performance  of  some  collateral  act.  Here  the  court 
will  ascertain  the  amount  of  damages  and  grant  relief  on  payment 
thereof. 

Care  must  be  taken  to  distinguish  between  a  penalty  and  a  sum 
which  is  really  liquidated  damages ;  not  that  it  follows  that  be- 
cause parties  stipulate  that  a  sum  shall  be  paid  on  breach  of  a  con- 
tract, "as  and  for  liquidated  damages,"  the  court  will  always  so 
consider  the  sum,  for  notwithstanding  it  is  so  called,  it  may  be  a 
penalty  in  the  disguise  of  liquidated  damages.  (See  Kemble  v.  Far- 
ren,  6  Bing.  141 ;  Lawson's  Leading  Cases  Simplified,  Vol.  I.,  p.  126.) 
But  where  the  sum  stipulated  to  be  paid  is  really  and  in  fact  liqui- 


70  EQUITY    CASES    SIMPLIFIED, 

dated  damages,  then  the  court  will  not  interfere.  The  question  of 
liquidated  damages  or  a  penalty  is,  however,  one  very  often  most 
diflBcult  to  determine,  and  depends  upon  the  construction  of  the 
whole  instument  taken  together. 

In  regard  to  forfeitures  the  same  general  principles  apply. 


EQUITY    CASES    SIMPLIFIED.  71 


CONTRIB UTION—  '' EQ UALIT T  IS  EQ UIT Y. ' ' 


BERING  V.  EARL,  OF  WINCHELSEA. 

[1  Cox,  318;  1  Wh.  &  Tud.  Ld.  Cas.  Eq.  100.] 

Thomas  Dering,  Esq.,  having  been  appointed  a  col- 
lector of  customs,  gave  three  different  bonds  to  the 
Crown  for  the  due  performance  of  the  duties  of  his 
office.  In  bond  No.  1,  his  brother  Edward  was  surety  ; 
in  bond  No.  2,  the  Earl  of  Winchelsea  was  surety,  and 
in  bond  No.  3,  Sir  John  Raus  figured  in  the  same 
capacity.  Collector  Dering  did  not  make  so  good  an 
officer  as  his  friends  and  the  government  expected  ;  he 
was  addicted  to  gaming,  and  when  his  books  were  ex- 
amined one  day,  he  was  found  to  be  a  debtor  to  the  gov- 
ernment to  the  extent  of  £3,883.  This  sum  the  Crown 
recovered  by  bringing  suit  on  bond  No.  1,  whereupon 
Edward  filed  a  bill  against  the  Earl  of  Winchelsea 
and  Sir  John  Raus,  in  which  he  asked  that  they  should 
contribute  their  proportions  of  the  sum  he  had  paid 
the  Crown  on  the  judgment  on  his  bond.  Winchelsea 
and  Raus  tried  hard  to  escape  contributing  their 
shares,  but  the  court  held  that,  though  they  were 
bound  by  different  instruments,  they  must  contribute, 
as  the  doctrine  of  contribution  amongst  sureties  is  not 
founded  in  contract,  but  is  the  result  of  general  equity, 
on  the  ground  of  equality  of  burden  and  benefit. 

At  common  law  no  contribution  could  be  enforced,  though  in  re- 
cent times  the  common  law  courts  have,  in  an  indirect  way,  admin- 
istered relief.    But  the  remedy  given  by  courts  of  equity  is  in  every 


72  EQUITY    CASES    SIMPLIFIED. 

way  superior,  for  there  is  tliis  important  distinction  between  con- 
tribution in  equity  and  at  common  law :  in  equity  the  contribution  is 
with  reference  to  the  time  when  it  is  sought  to  be  enforced,  but  at 
common  law  with  reference  to  the  number  of  sureties  originally 
liable.  Thus,  A.,  B.,  and  C.  being  sureties,  A.  is  forced  to  pay  the 
whole  amount.  B.  has  become  insolvent;  nevertheless  at  common 
law  A.  can  only  recover  a  third  from  C,  though  in  equity  he  can  re- 
cover half.  Further,  if  a  surety  die,  contribution  can  be  enforced 
in  equity  as  against  his  representatives ;  but  at  common  law  the 
surviving  sureties  only  can  be  sued. 


EQUITY   CASES   SIMPLIFIED.  73 


MARRIED  WOMEN—  EQUITY  TO  A  SETTLE- 
MENT—''  HE  WHO  SEEKS  EQUITY 
MUST  DO  EQUITY.'' 


LADY  ELIBANK  v.   MONTOLIEU. 

[5  Ves.  737;  1  Wh.  &  Tud.  Ld.  Cas.  Eq.  424.] 

I  am  the  Lady  Elibauk, 

Of  all  wives,  I  have  thank 
That  seek  their  goods  in  the  chancery. 

Wives'  equity  to  settlement 

Hath  worship  and  establishment, 
And  strength  of  days  by  this  decree. 

Seven  years  I  strove  there  with  my  lord, 

And  plucked  the  flower  of  three-fold  word, 
In  triple  doom  and  mastery. 

So  speaks  the  heroine  of  this  celebrated  case  in  the 
lays  of  the  Apprentice  of  Lincoln's  Inn.^  But  about 
the  case  itself  there  was  very  little  poetry,  for  it 
arose  and  was  decided  in  a  place  where  poetry  is  rather 
out  of  place  —  the  Court  of  Chancery.  A  rich  sister  of 
Lady  Elibank's  had  died  intestate,  and  without  chil- 
dren, and  she  was  therefore  entitled  to  a  nice  little 
share  of  money.  When  she  applied  to  the  administra- 
tor for  some  of  it,  the  latter  blandly  produced  two 
bonds,  executed  by  Lord  E.,  and  which  were  an  ac- 
knowledo-uient  of  a  debt  due   from    Lord    E.  to  the 


'  Leading  Cases  done  into  English.     By  an  Apprentice  of  Lin- 
coln's Inn,  London,  1876.  , 


74  EQUITY    CASES    SI3IPLIF1ED. 

administrator.  "As  whatever  share  joii  may  claim 
from  j^our  sister's  estate  belongs  legally  to  youv  hiis- 
band,  I  propose  to  retain  it  to  pay  his  debt  to  me," 
said  the  administrator.  LadyElibank,  thereupon,  did 
a  very  unprecedented  thing,  —  she  filed  a  bill  in  equity 
against  the  administrator  and  her  husband.  The 
Chancellor  decided  in  her  favor,  and  laid  it  down  that 
a  married  woman  may  maintain  a  suit  in  chancery  to 
aseert  \\qv  equity  to  a  settlement  on  herself  and  her  chil- 
dren, out  of  property  to  which  she  is  entitled,  and  as 
it  appeared  to  him  that  the  settlement  which  had  been 
made  on  her  on  marriage  was  inadequate,  he  decreed  a 
further  settlement  in  her  favor. 


MURRAY  V.  LORD   ELIBANK. 

[10  Ves.  8i;   1  Wh.  &  Tud.  Lcl.  Cas.  Eq.  432;  13  Ves.  1;   1  Wh.  & 
Tud.  Ld.  Cas.  Eq.  439.] 

Lady  Elibank  unfortunately  did  not  reap  the  fruits 
of  her  pluck.  After  the  decree  in  the  last  suit,  but  be- 
fore any  settlement  in  pursuance  thereof  had  been 
made,  she  died  intestate,  and  another  bill  was  filed  by 
her  infimt  children  for  the  carrying  out  of  the  settle- 
ment in  their  favor,  notwithstanding  her  death.  They 
were  successful.  The  court  decided  that  the  wife  ob- 
tained by  the  decree  in  the  suit  of  Lady  Elibank  v. 
Montolieu,  a  judgment  for  the  children,  liable  to  be 
waived  if  she  thought  proper;  otherwise  to  be  left 
standing  for  their  benefit  at  her  death. 

At  common  law  a  married  woman  had  very  few  fights  of  prop- 


EQUITY    CASES    SIMPLIFIED.  t  i) 

erty.  An  unmarried  woman  who  owned  property  mi<;ht  deal  with 
it  as  if  she  were  a  man,  but  o^  her  marriage  her  husband  got  it  all  — 
her  real  property  for  his  life,  her  personal  property  absolutely,  and 
her  rights  of  action  (called  choses  in  action)  if  he  took  them  into 
his  possession  during  the  coverture.  But,  while  with  one  hand  the 
law  took  away  her  property  rights,  it  gave  her,  in  their  place,  sev- 
eral considerable  immunities.  She  could  not  be  sued  on  any  con- 
tract she  might  make.  She  could  not  be  sued  even  if  her  husband 
neglected  to  provide  her  with  necessaries;  for  in  this  case  she 
could  so  far  bind  him,  that  those  who  furnished  her  with  articles  of 
subsistence  might  sue  him.  Mauby  v.  Scott  and  cases  seq.,  1  Law- 
son's  Ld.  Cas.  Simp.  45.  The  theory  of  the  common  law  was,  that 
the  husband  took  the  wife's  property  in  consideration  of  the  obliga- 
tion which  he  contracted  on  marriage,  of  maintaining  her  and  her 
children.  But  it  very  often  happened  that  the  husband  did  not  do 
his  duty  in  this  respect,  —  for  he  might  alien  or  squander  the  prop- 
erty which  his  wife  brought  him,  and  the  law  had  no  means  of  pre- 
venting him  from  doing  this,  or  of  enforcing  his  marriage  obliga- 
tion. 

The  Court  of  Chancery  saw  this,  and  straightway  invented 
a  method  of  i-emedyiug  this  injustice.  Now  and  then  a  hus- 
band was  forced  to  resort  to  a  court  of  equity  in  order  to 
get  possession  of  property  to  which  his  wife  was  entitled ;  and  in 
such  cases  the  Chancellor,  acting  upon  the  maxim,  "  He  who  seeks 
equity  must  do  equity,"  refused  to  .help  him  unless  he  agreed  to 
settle  a  portion  of  it  on  his  wife  for  her  separate  use.  This  was 
called  the  wi/e's  equittj  to  a  settlement,  and  though  at  first  only  en- 
forced, when  the  husband  was  compelled  to  resort  to  the  assistance 
of  chancery  to  reach  his  wife's  property,  the  courts  of  equity  after- 
wards went  further,  and  in  Elibank  v.  Montolieu,  decided  that  this 
settlement  could  be  claimed  by  the  wife  coming  into  court  herself 
as  a  plaintiff. 

It  should  be  remembered  that  the  equity  to  a  settlement  is  strictly 
personal  to  the  wife,  and  the  children  have  no  independent  equity 
of  their  own;  so  that  in  the  case  of  Murray  v.  Lord  Elibank,  if 
Lady  Elibank  had  died  before  decree,  her  children  would  not  have 
been  entitled  to  any  settlement.  If  the  settlement  on  a  woman's 
marriage  is  perfectly  adequate,  no  further  settlement  will  be  de- 
creed ;  but  when  a  settlement  is  decreed,  the  amount  to  be  settled 
is  usually,  and  in  the  absence  of  special  circumstances,  one-half  of  the 
property.    If,  after  marriage,  a  settlement  of  property  is  made 


76  EQUITY    CASES    SIMPLIFIED. 

♦ 

upon  the  wife  voluntarily,  in  consideration  of  her  equity  to  a  set- 
tlement, it  is  good  as  against  creditors  if  the  court  would,  under 
the  circumstances,  have  decreed  one,  had  application  been  made  to 
it  for  the  purpose.     Indermaur  Ld.  Cas.  Eq.  68. 


EQUITY    CASES    SIMPLIFIED.  77 


MARRIED  WOMEN -- RIGHTS  AND  LIABILITIES 
AS  TO  SEPARATE  ESTATE. 


JAQUES  V.  METHODIST  EPISCOPAL.  CHURCH. 

[17  Johns.  548.] 

Mrs.  Jaques  being  the  owner  of  considerable  real 
and  personal  estate,  and  wishing  to  keep  it  out  of  her 
intended  husband's  clutches,  before  her  marriage  con- 
veyed it  to  trustees,  to  hold  it  in  trust  for  her  sepa- 
rate use  after  her  marriage,  during  her  natural  life, 
and  then  to  the  use  of  those  to  whom  she  should  devise 
it  by  her  last  will  and  testament.  Before  her  death 
Mrs.  Jaques  conveyed  the  separate  estate  by  deed, 
and  the  question  was  whether  she  could  do  this. 

The  case  first  came  before  Chancellor.  Kent,  of  pious 
memory,  and  he  decided  that  as  the  deed  of  settlement 
of  the  separate  estate  pointed  out  the  particular  mode 
in  which  she  might  dispose  of  it,  this  method  must  be 
considered  as  the  limit  of  her  power,  and  as  it  pro- 
vided that  she  should  convey  it  by  will  she  could  not 
convey  it  by  deed.^  But  in  the  Court  of  Errors,  the 
Chancellor's  decision  was  reversed,  and  the  correct  prin- 
ciple was  declared  to  be  that  *'  unless  specially  re- 
strained by  the  instrument  creating  the  separate  estate, 
a  married  woman  is,  with  respect  to  that  estate,  a,  feme 
sole  in  equity,"  and  may  dispose  of  the  estate  in  any 


1  Methodist  Episcopal  Church  v.  Jaques,  3  Johns.  Ch.  77. 


78  EQUITY    CASES    SIMPLIFIED. 

way  she  pleases,  and  a  specification  in  the  deed  of  set- 
tlement of  particular  modes  in  which  she  may  dispose 
of  the  estate,  will  not,  of  itself,  restrain  her  from  dis- 
posing of  it  in  any  other  manner. 

At  common  law,  as  we  have  said,  a  married  woman  could  not 
make  a  contract  binding  herself  or  her  property.  Equity,  how- 
ever, created  a  separate  estate  for  her  and  gave  her  the  power 
to  dispose  of  it. 

The  jurisdiction  of  equity  over  the  property  of  married  women 
was  exercised  to  a  greater  extent  under  its  power  as  to  trusts. 
Where  property  had  been  settled  to  the  separate  use  of  a  married 
woman,  equity  looked  upon  the  husband  as  a  trustee  of  the  property 
for  the  wife,  and  treated  it  as  her  own.  In  later  times,  and  es- 
pecially in  the  United  States,  the  separate  property  of  a  married 
woman  has,  by  statute,  been  freed  from  the  grasp  of  the  husband's 
authority,  and  from  the  liability  for  his  debts  and  engagements. 
The  rule  of  equity,  has  in  short,  been  adopted  by  the  Legislature, 
and  at  the  same  time,  the  power  of  a  married  woman  over  her 
property  and  her  obligations  regarding  it,  as  laid  down  by  the 
courts  of  chancery,  have  been  judicially  declared.  These  are  (1) 
her  power  of  disposing  of  her  estate;  (2)  its  liability  for  her 
contracts. 

1.  As  to  her  separate  estate,  a  married  woman  has  in  equity  the 
same  power  of  disposition  as  if  she  were  unmarried,  except  in  one 
case,  viz. :  where  the  power  to  dispose  is  restrained  by  the  deed 
creating  it.  See  TuUett  v.  Armstrong,  post,  p.  80.  This  is  the  gen- 
eral rule  in  this  country,  although  in  South  Carolina  and  a  few 
other  States,  it  is  held  that  she  has  not  the  power  to  convey  her 
separate  estate,  unless  such  power  is  expressly  given  her  by  the 
instrument  creating  it. 

2.  A  married  woman's  separate  estate  is  liable  for  her  debts  and 
engagements.  When  a  man  makes  a  debt  his  property  is  liable  to 
its  payment.  A  court  of  equity  having  created  a  separate  estate,  • 
has  enabled  a  married  woman  to  contract  debts  in  respect  to  it,  and 
therefore  her  property  should  be  and  is  liable.  It  is  not,  however, 
liable  to  the  same  extent,  as  the  property  of  a  man  or  a  feme  sole. 
The  true  rule  seems  to  be  that  it  is  liable  for  all  debts  which  she 
expressly  charges,  or  which,  judging  from  their  nature,  it  may 
fairly  be  presumed  that  she  intended  to  charge  on  her  separate 
estate. 


EQUITY    CASES    SIMPLIFIED.  79 

South  Carolina  and  the  other  States  which  we  have  mentioned 
as  holding  a  contrary  doctrine  as  to  the  power  of  a  married  woman 
to  convey  her  separate  estate,  have  also  refused  to  adopt  the  above 
rule  as  to  her  power  to  bind  it  for  her  engagements. 


80  EQUITY    CASES    SOIPLIFIED. 


MARRIED    WOMEN—  SEPARATE  ESTATE    AND 
RESTRAINT  UPON  ALIENATION. 


TULLETT  V.  ARMSTRONG. 

[1  Beav.  1 ;  4  Myle  &  Cr.  377.] 

Nathaniel  Bradford,  by  his  will,  gave  certain  prop- 
erty to  trustees  in  trust  for  his  wife  for  life,  with  re- 
mainder to  his  granddaughter,  Mary  Tilt,  for  life,  "  in 
such  manner  that  it  should  not  be  anticipated,  and  that 
no  husband  should  acquire  any  control  over  it."  When 
the  testator  died  Mary  was  unmarried,  but  in  the  life- 
time of  his  widow  she  married  Mr.  Armstrong.  The 
questions  which  arose  and  were  settled  in  this  case 
were  (1)  the  effect  of  a  gift  to  the  separate  use  of  a 
woman  unmarried  at  the  time;  (2)  the  effect  of  the 
gift  prescribing  that  the  property  should  not  be  antici- 
pated. 

This  case  decided  that  both  the  separate  use  clause 
and  the  restriction  against  alienation  became  effectual  on 
the  subsequent  marriage,  and  that  such  a  restraint 
against  alienation  is  annexed  to  the  separate  estate  only, 
and  the  separate  estate  has  its  existence  only  during 
coverture  ;  but  that  whilst  the  woman  is  discovert  the 
separate  estate,  whether  modified  by  restraint  or  not,  is 
suspended,  and  has  no  operation,  though  it  is  capable 
of  arising  upon  the  happening  of  a  marriage. 

The  courts  of  equit}'  having,  as  we  have  seen,  allowed  the  wife 
to  deal  with  her  separate  estate  as  she  pleased,  and  likewise  made 
it  liable  to  her  engagements,  it  was  necessary  to  hit  upon  some 
plan  to  protect  the  separate  estate  of  the  wife  both  against  herself 


EQUITY    CASES    SIMPLIFIED.  81 

and  her  creditors,  for  this  was  generally  the  object  of  the  donor  in 
making  such  a  disposition  of  his  property  to  a  married  woman. 
The  plan  adopted  was  the  insertion  in  the  trust  instrument,  of  a 
clause  imposing  a  restraint  upon  alienation;  declaring  that  the 
property  should  not  be  used  "  by  way  of  anticipation."  This  was 
invented  by  Lord  Tiiurlow,  and  sustained  by  the  courts.  Such  a 
restraint  was,  of  course,  a  violation  of  the  rules  of  property,  for 
what  a  man  owns  absolutely  he  has  always  a  right  to  alienate  if  he 
wishes ;  and  this  right  cannot  be  taken  away  by  any  condition  or 
stipulation  in  the  grant.  But  the  courts  of  equity  did  not  stick  at 
this.  "The  separate  estate  and  the  prohibition  of  anticipation," 
said  the  Lord  Chancellor  in  Tullett  v.  Armstrong,  "are  equally 
creatures  of  equity  and  equally  inconsistent  with  the  ordinary  rules 
of  property." 

The  restraint  upon  alienation,  as  appears  from  the  above  case, 
will  not  prevent  the  woman  from  disposing  of  the  property  settled 
to  her  separate  use,  if  she  choses  to  do  so  before  marriage,  or  in 
the  interval  between  different  covertures ;  but  the  restraint  will  at- 
tach whenever  coverture  takes  place.    Bisp.  Eq.,  sect.  107. 

The  rule  in  Tullett  v.  Armstrong  is  the  law  of  this  country,  ex- 
cept in  Pennsylvania,  Arkansas,  and  North  Carolina. 

6 


82  EQUITY   CASES   SIMPLIFIED. 


ACCIDENT. 


LOSS   OF  DOCUMENTS. 


LAWRENCE  v.  LAWRENCE. 

[-42  N.  H.  109.] 

Joseph  Lawrence,  of  New  Hampshire,  was  hardly  the 
kind  of  a  son  to  hold  up  as  a  model  to  the  rising  gen- 
eration. He  induced  his  father  to  convey  his  farm  to 
him,  in  consideration  of  his  agreeing  to  maintain  his 
parents  during  their  lives,  and  to  secure  this  promise, 
he  gave  a  mortgage  of  the  farm  back  to  his  father. 
Before  the  mortgage  was  recorded  it  was  lost,  and 
when  the  old  man  asked  Joseph  for  a  new  one,  he  not 
only  refused  to  execute  a  new  one,  ))ut  pretended  that 
he  never  had  given  his  parent  a  mortgage  at  all,  but  that 
Lawrence,  Sr.,  had  been  dreaming  all  the  time.  Then  he 
went  on  to  treat  the  farm  as  his  own  ;  cut  down  the 
timber  and  commenced  to  make  the  most  of  it.     The 


EQUITY    CASES    SIMPLIFIED.  83 

old  iu:vn  went  to  the  Court  of  Chancery  and  asked 
the  judges  to  compel  Joseph  to  make  him  a  new  mort- 
gage. Here  Joseph  reiterated  his  story,  that  there 
never  had  been  any  mortgage  at  all,  but  the  court, 
after  hearing  the  evidence,  decided  that  he  was  a  liar 
as  well  as  an  ingrate,  and  ordered  him  to  execute  a 
new  mortgage  of  the  farm  to  his  father. 

The  jurisdiction  of  tlie  court  in  this  class  of  cases  comes  un- 
der the  relief  against  accident,  which  courts  of  equity  will  give. 

By  accident  in  equity  is  not  meant  some  inevitable  casualty  or 
act  of  God  or  vis  major,  but  "  any  unforeseen  event,  misfortune,  loss, 
act,  or  omission  which  is  not  the  result  of  negligence  or  misconduct 
in  the  party."     Snell  Eq.  420. 

As  the  jurisdiction  of  equity  in  case  of  accident  is  only  concurrent 
with  that  of  courts  of  law,  the  former  will  only  give  relief  (1)  when 
a  court  of  law  cannot  grant  suitable  relief;  (2)  when  the  party  ask- 
ing it  has  a  conscientious  title.  Both  these  things  must  concur. 
And  it  should  be  noted  that  where  the  jurisdiction  of  equity  has 
once  attached  by  reason  of  there  being  originally  no  remedy  in  the 
matter  at  law,  this  jurisdiction  will  not  be  ousted,  because  the 
courts  of  law  have  voluntarily  determined  to  give  such  relief,  or 
have  been  authorized  to  do  so  by  statute. 

The  cases  in  which  equity  will  give  relief  against  accident  are: — 

1 .  Cases  of  lost  and  destroyed  documents. 

2.  Cases  of  the  imperfect  execution  of  poioers. 

3.  Cases  of  accidental  forfeitures . 

4.  Cases  of  accidental  losses. 

1.  Cases  of  lost  and  destroyed  documents.  —  Lawrence  v.  Law- 
rence, ante,  p.  82,  illustrates  the  first  class.  The  interposi- 
tion of  equity  in  the  case  of  lost  documents  arose  in  this 
wise.  Formerly  there  could  be  no  remedy  on  a  lost  bond  at 
law,  because  it  was  required  that  it  should  be  produced  in  court  in 
order  that  the  defendant  might  demand  oyer  of  it,  i.e.,  that  it  should 
be  produced  and  read  in  open  court.    Equity  then  stepped  in  and 


84  EQUITY    CASES    SIMPLIFIED. 

remedied  this  defect.  Although  subsequently  courts  of  law  dis-; 
pensed  with  this  formality,  the  jurisdiction  of  equity  which  at- 
tached under  the  old  practice  was  still  retained.  The  same  rule 
obtained  at  law  as  to  lost  negotiable  instruments.  This,  too,  has 
been  altered  in  recent  times. 

2.  Cases  of  imperfect  execution  of  powers.  — Toilet  v.  Toilet,  post, 
p.  86,  illustrates  the  second  class. 

3.  Cases  of  accidental  forfeitures.  —  Bostwick  v.  Stiles,  post, 
p.  89,  illustrates  this  class. 

4.  Cases  of  accidental  losses. — Jones  v.  Lewis,  post,  p.  92 
illustrates  this  class. 

On  the  other  hand,  in  the  following  cases  of  accident,  equity  will 
not  relieve. 

1.  In  matters  of  positive  contract  created  by  the  act  of  the  parties.  — 
A  man  leases  a  house  and  covenants  to  pay  rent  for  live  years.  Be- 
fore the  end  of  the  first  year  the  house  is  accidentally  burned  down. 
(See  Lawson's  Ld.  Cas.  Simp.,  Vol.  I.,  p.  165.)  Equity  will  not  re- 
lieve nim  from  the  payment  of  the  rent  for  the  rest  of  the  term,  for 
he  might  have  provided  against  the  liability  by  contract  if  he  had  . 
been  so  minded. 

2.  When  both  parties  are  equally  innocent.  —  A.  is  negotiating  for 
the  purchase  of  a  house  from  C.  They  make  a  contract  for  the  sale 
of  the  house,  at  a  price  to  be  fixed  by  B.  during  their  life.  Before 
B.  makes  his  award,  A.  or  C.  dies.  Equity  will  not  enforce  the 
sale  on  the  ground  of  accident,  for  the  time  of  making  the  award 
was  expressly  fixed  in  the  contrac.t  according  to  the  pleasure  of 
the  parties,  and  a  different  period  cannot  be  substituted.  Snell,  Eq. 
430. 

3.  Wiere  the  party  asking  relief  has  been  guilty  of  gross  negligence. 

4.  Where  the  party  asking  relief  has  not  a  clear  vested  right.  —  A 
millionaire,  for  example,  may  intend  to  leave  A.,  B.,  and  C.  lega. 
cies  of  $10,000  each  by  his  will.  Through  some  accident  he  dies 
before  making  a  will,  and  A.,  B.,  and  C,  not  being  heirs,  get  noth- 
ing. Here,  because  they  have  no  vested  right,  equity  cannot  help 
them.  Another  instance  of  this  rule  occurs  in  powers  of  appoint- 
ment. If  the  donee  fails,  through  accident,  to  execute  a  power, 
equity  cannot  help  him,  unless  it  is  coupled  with  a  trust,  iu  which 


EQUITY    CASES    SIMPLIFIED.  85 

latter  case  there  is  some  vested  interest  to  raise  the  equity.    Post, 
p.  88. 

5.   Where  the  other  party  has  an  equal  equity,  as  in  the  case  of  a 
Jona  ^cZe  purchaser  for  valuable  consideration  without  notice. 


86  EQUITY    CASES    SIMPLIFIED. 


IMPERFECT  EXECUTION  OF  POWERS. 


TOLLET  V.    TOLLET. 

[2  P.  Wms.  489;   1  Wh.  &  Tud.  Ld.  Cas.  Eq.  227.] 

One  of  Mr.  Toilet's  ancestors  had  settled  some  lands 
on  him,  with  a  power  to  make  })art  of  it  over  to  his 
wife  by  deed,  under  his  hand  and  seal.  Mr.  Toilet 
made  it  by  ivill,  and  the  court,  notwithstanding  this 
defect,  sustained  it.  "  The  difference,"  said  the  Mas- 
ter of  the  Rolls,  "  is  betwixt  a  non-execution  and  a  de- 
fective execution  of  a  power.  The  latter  will  always 
be  aided  in  equity,  under  the  circumstances  mentioned, 
it  being  the  duty  of  every  man  to  pay  his  debts, 
and  a  husband  or  father  to  provide  for  his  wife  or 
child.  Bnt  this  court  will  not  help  the  non-execution 
of  a  power,  since  it  is  against  the  nature  of  a  power, 
which  is  left  to  the  free  will  and  election  of  the  party, 
whether  to  execute  it  or  not,  for  which  reason  equity 
will  not  say  he  shall  execute  it,  or  do  that  for  him 
which  he  does  not  think  fit  to  do  for  himself." 

Toilet  V.  Toilet  is  an  authority  for  two  principles-  (1)  that 
equity  will  aid  the  defective  execution  of  a  power;  but  (2)  will  not  aid 
the  non-execution  of  a  power. 

1.  Equity  icill  aid  the  defective  execution  of  a  power.  —  The  juris- 
diction of  the  court  in  cases  of  this  kind,  is  based  on  the  theory 
that  the  donee  of  the  power  has  intended  to  execute  it,  but  has 
been  prevented  from  doing  so  by  some  accident  or  mistake,  and 
equit}'  will  not,  in  such  a  case,  suffer  the  intention  to  be  defeated. 

But  the  aid  of  equity  is  limited  to  five  classes  of  persons,  viz. : 

(1)  A  purchaser  (which  term   included  a  mortgagee  and  a  lessee), 

(2)  a  creditor,  (3)  a  wife,  (4)  a  legitimate  child,  (5)  a  charity. 


EQUITY    CASES    SIMPLIFIED.  87 

Again,  equity,  will  not  give  its  aid  wliere  the  will  of  the  donor 
will  be  thereby  defeated.  We  have  seen  that  in  Toilet  v.  Toilet, 
Mr.  T.  executed  thepowerby  deed,  when  he  should  have  done  so  by 
will.  Wiee  Mr.  Toilet.  If  he  had  done  the  converse  of  this,  his 
act  would  have  received  no  help.  A  power  to  appoint  by  will 
cannot  be  exercised  by  deed,  for  the  donor  of  the  power  is  supposed 
to  intend  that  the  power  shall  be  revocable  during  the  life  of  the 
donee,  and  this  intention  is  defeated  by  the  execution  of  a  deed. 

2.  Equity  will  not  aid  the  non-execution  of  a  power.  —  Because 
where  there  has  been  no  exercise  of  the  power  at  all,  no  intention 
to  exercise  it  can  be  presumed,  and  there  is  therefore  no  ground 
for  the  interference  of  the  court.  To  this  rule,  however,  there  are 
two  exceptions :  — 

1.  Where  the  execution  has  been  prevented  by  fraud. 

2.  Where  the  power  is  coupled  with  a  trust.  Withers  u.  Yea- 
don,  the  next  case,  illustrates  this  exception. 


88  EQUITY    CASES    SIMPLIFIEDo 


POJVERS  COUPLED   WITH  TRUSTS. 


WITHERS    V.   YEADON. 

[lRich.Eq.32-t.] 

John  Wagner  devised  his  real  estate  and  other 
proiDerty  to  his  son  George,  to  apply  the  rents  and 
Ijrofits  thereof  to  the  nse  of  himself  and  his  family,  and 
what  he  shonld  not  nse  up  in  this  way  he  was  to  give 
or  devise  by  deed  or  will  to  his  (George's)  children, 
in  such  proportions  as  he  should  think  fit.  George 
died  without  having  executed  this  power,  but  on  a  bill 
filed  in  chancerA^  the  court  decided  that  his  children 
were  entitled  to  divide  the  property  equally.  "  In  all 
cases,"  said  the  court,  "where  property  is  given  to 
one,  enabling  him  to  execute  a  power  in  a  discretionary 
manner,  and  he  does  not  exercise  his  discretion  or  exe- 
cute the  power,  the  class  of  persons  among  whom  the 
bounty  was  to  be  distributed  shall  not  be  disappointed 
by  his  neglect,  but  shall  take  equally.  The  rule  of  all 
such  powers  is  that  they  are  trusts  to  be  executed." 


EQUITY    CASES    SIMPLIFIED.  89 


ACCIDENTAL   FORFEITURES. 


BOSTWICK    V.    STILES. 

[35  Conu.  195.] 

Mr.  Bostwick  was  unfortunate  enough  to  have  his 
property  foreclosed  under  ti  mortgage.  But  he  had 
one  chance  to  redeem  it.  Bv  the  decree  of  foreclosure 
it  was  provided,  that  if  he  should  pay  the  amount  of 
his  debt  ($3,723.50)  by  the  fifth  day  of  August,  1867, 
he  might  have  his  property  back  ;  otherwise  not.  IMr. 
Bostwick  did  not  intend  to  let  this  chance  go  by.  He 
wrote  to  his  uncle,  a  man  of  means,  on  the  matter, 
Avho  promised  him  to  let  him  have  the  money  on  the 
third  of  August.  The  third  of  August  came,  but  not 
the  money.  He  made  other  exertions  with  other  peo- 
ple, but  the  time  was  too  short,  and  two  days  later  the 
fatal  time  expired,  and  Mr.  Bostwick' s  land  became 
the  property  of  Mr.  Stiles,  the  mortgagee.  Mr.  Bost- 
wick thought  this  too  bad,  and  so  did  the  court  to 
which  he  applied,  for  it  ordered  the  foreclosure  to  be 
reopened,  and  Mr.  B.  to  have  another  chance  to  re- 
deem.    And  all  this  it  did  on  the  ground  of  accident. 

"  It  is  the  peculiar  province  of  a  court  of  equity," 
said  Park,  J.,  "to  grant  relief  in  cases  of  fraud,  acci- 
dent, or  mistake,  where  there  has  been  no  fault  on  the 
part  of  the  party  seeking  relief.  *  *  *  The  ques- 
tion is,  whether  the  facts  of  this  case  are  sufficient  to 
show  that  the  failure  to  pay  the  respondent  (Sliles) 
on  the  tifth  day  of  August  was  occasioned  by  aocident 


90  EQUITY    CASES    SIMPLIFIED. 

without  any  fault  or  negligence  on  the  part  of  the  pe- 
tioner.     If  the    petitioner  had  collected  the  amount 
and  had  it  in  his  house  to  pay  the  respondent  on  that 
day,  but  on  the  night  previous  his  dwelliug  had  taken 
fire,  and  the  money  had  been  consumed,  no  one  would 
doubt  that  the  nou-payment    was    the  result  of  acci- 
dent.    If  the  petitioner  had  made  arrangements  with 
a  bank,  and  they  had  agreed  to  furnish  the  money  on 
certain  security,  and  the  security  had  been  given,  but 
owing  to  some  sudden  and  unexpected  revulsion  in  fi- 
nancial affairs,  they  had  refused  to  fulfil   their  agree- 
ment   at    the  last  hour,    could    there  be    any   doubt 
that  the  failure  to  pay  according  to  the   decree  was 
owing  to  accident?     Wherein  does  this  diff'er  in  prin- 
ciple?    The  uncle  of  the  petitioner  was  both  able  and 
willing  to  furnish   the   money.     He   had  agreed  to  do 
so,  and  looking  at  probabilities    in    relation  to  future 
events,  it  was  as  morally  certain  that  the  money  would 
be  furnished,  in  the  case  of  the  uncle  as  in  the  case  of  the 
bank.     There  is  a  decree   of  uncertainty  in  regard  to 
all  expectations,  and  no  more  ought  to  be  required  in 
relation  to  future    obligations   imposed    by    law,  than 
that  such  measures  shall  be  taken  to  fulfil  them  as  will 
render  it  reasonably  certain,, so  far  as  human  sagacity 
can   foresee,   that  they  will   be   performed.     If   such 
measures  are  taken  and  they  result  in  a  failure  to  pay 
as  the  decree  requires,  how  can  it  be  said  that  a  party 
has   been   orniltv    of  neulijxcnce?     Even  in  actions   at 
law,  no  greater  degree  of  care  is  required  to  avoid  in- 
juries  to   others   while    in    the   performance  of  lawful 
acts,  and  if  dangers  result  they  are  regarded  as  occa- 
sioned  by  inevitable   accidents.     Applying    this  rule 
and  considerins:  the  case  at  the  time  the  promise  was 


EQUITY    CASES    SIMPLIFIED.  91 

made,  was  there  any  reasonable  doubt  that  would  suo-- 
gest  itself  to  a  man  of  prudence  and  sagacity  that  the 
money  might  not  be  furnished?  The  relation  of  the 
parties  was  that  of  uncle  and  uephew.  The  uncle  had 
agreed  to  furnish  the  money.  The  case  removes  all 
doubt  of  his  ability  to  do  so.  He  knew  the  import- 
ance of  fulfilling  his  promise.  He  knew  his  uephew 
was  depending  upou  him,  and  that  it  would  be  worse 
than  cruelty  to  disappoint  him  at  the  last.  Every 
person  in  like  circumstances  would  be  led  to  suppose 
that  the  promise  of  the  uncle  was  equivalent  to  having 
the  money  in  hand.  We  think,  therefore,  that  the  i)e- 
titioner  was  prevented  from  paying  the  respondent  the 
amount  of  his  claim  on  the  third  day  of  August,  as  he 
had  intended,  l)y  the  happening  of  some  unforseen 
event  over  which  the  petitioner  had  no  control,  and 
that  he  was  consequently  free  from  fault.  " 


92  EQUITY    CASES    SIMPLIFIED. 


A  CCIDENTAL  PENAL  TIES. 


JONES  V.  LEWIS. 

[2Ves.  Sr.  240.] 

MrSc  Lewis  was  the  administratrix  of  her  husband's 
estate.  Called  upon  by  the  Court  of  Chancery  to 
deliver  certain  goods  to  the  legatee,  she  answered 
that  this  was  impossible,  as  they  had  been  stolen 
from  her  solicitor  to  whom  she  had  entrusted  them 
for  safe  keeping.  The  legatee  did  not  think  this  a 
good  excuse,  but  the  court  did  ;  and  Lord  Chancel- 
lor Hardwicke  refused  to  charse  her  with  the  things 
lost. 

In  administering  estates,  executors  and  administrators  sometimes 
pay  some  debts  and  legacies,  thinking  that  the  assets  are  sufficient 
for  the  purpose  of  paying  all  the  debts  and  legacies.  They  are 
sometimes  mistaken  on  this  point,  for  unsuspected  debts  will  often 
subsequently  come  to  light.  Under  such  circumstances,  they  used 
to  be  unable  to  get  any  relief  in  a  court  of  law.  But  in  equity, 
when  they  act  in  good  faith  and  with  caution,  they  are  relieved; 
otlierwise,  they  would  be  subject  to  au  unjust  loss  from  an  acci- 
dent. 

So,  if  some  of  the  property  were  stolen  or  destroyed  by  fire  or 
other  accident.  While  in  the  hands  of  an  executor  or  administra- 


EQUITY    CASES    SIMPLIFIED.  93 

tor,  this  circumstance  was  uo  defence  at  law  when  he  was  sued 
by  a  creditor  or  legatee.  Jones  v.  Lewis  shows  that  it  is  different 
in  equity. 


94  EQUITY    CASES    SIMPLIFIED. 


MISTAKE. 


MISTAKES  OF  LAW. 


HUXT  V.    ROUSMAXIERE. 

[8  Wheat.  17-1;   1  Pet.  1.] 

A  creditor  took  from  his  debtor  a  power  of  attorney 
to  execute  a  bill  of  sale  of  a  ship.  The  creditor  took 
this  kind  of  a  document  because  he  thought  that  it 
would  be  as  valid  a  security  as  a  mortgage,  and  it 
was  not  strange  that  he  thought  so,  for  he  had  con- 
sulted his  lawyer  who  had  advised  him  to  this  effect. 
But  the  lawyer  was  wrong.  The  debtor  died,  and  his 
death  having  the  effect  of  revoking  the  powder  of  at- 
tornc}',  the  creditor  found  himself  without  the  securit}^ 
he  had  counted  on. 

The  creditor  went  to  the  Court  of  Chancery  for  re- 
lief from  his  mistake,  but  found  none.  "  Where  the 
parties,"  said  the  court,  "  upon  delil)eration  and  ad- 
vice reject  one  species  of  security,  and  agree  to  select 
another,  under  a  misapprehension  of  the  law  as  to  the 
nature  of  the  security  so  selected,  a  Court  of  Equity 
will  not,  on  the  ground  of  such   misapprehension  and 


EQUITY    CASES    SIMPLIFIED.  95 

the  insufficiency  of  such  security,  in  consequence  of  ii 
subsequent  event  not  foreseen,  perhaps,  or  thought  of, 
direct  a  new  security  of  a  different  character  to  ])e 
o-iven,  or  decree  that  to  be  done  which  the  parties  sup- 
posed would  have  l)een  effected  by  the  instrument 
which  was  finally  agreed  on.  " 


LANSDOWNE  v.  LANSDOWNE. 

[2  Jac.  &  W.  205 ;  Mos.  3G4.] 

This  case  is  a  lesson  to  people  who,  to  save  expense, 
try  to  find  out  their  rights  without  consulting  a  lawyer. 
There  once  lived  in  Enghmd,  four  brothers,  land 
owners.  The  second  dies  and  the  eldest  and  youngest 
both  claim  his  land.  They  agree  to  leave  their  dispute 
to  a  schoolmaster  in  the  neighborhood,  who  after  con- 
sulting an  "  Every  Man  his  Own  Lawyer,  "  delivers 
himself  of  a  learned  opinion  to  the  effect  that  as  it  is 
a  maxim  that  land  cannot  ascend,  but  always  descends, 
the  younger  brother  is  entitled  to  the  property. 
Acting  on  the  schoolmaster's  advice,  the  eldest  brother, 
the  real  heir,  executes  a  release  of  his  claims  to  the 
youngest  brother,  but  after  a  while,  finding  out  what  a 
fool  he  has  been  he  applies  to  the  Court  of  Chancery 
for  relief. 

The  Lord  Chancellor  orders  the  release  to  be  set 
aside,  and  the  younger  brother  to  convey  the  property 
to  the  eldest  brother. 


96  EQUITY   CASES   SIMPLIFIED. 

STAPLETON  v.  STAPLETON. 

[1  Atk.  2;  2  Wh.  &  Tud.  Ld.  Cas.  Eq.  S3G.] 

This  case  is  the  leading  authorit}'  for  these  doctrines 
of  equity. 

(1.)  That  an  agreement  entered  into  upon  a  suppo- 
sition of  a  right,  or  of  a  doubtful  right,  tliough  it 
afterwards  appears  that  the  right  was  on  the  other 
side,  shall  be  binding,  and  the  right  shall  not  prevail 
against  the  agreement  of  the  parties  ;  for  the  right 
must  always  be  on  one  side  or  the  other,  and  there- 
fore the  compromise  of  a  doubtful  right  is  a  sufficient 
foundation  for  an  agreement. 

( 2. )  That  where  agreements  are  entered  into  to  save 
the  honor  of  a  family,  and  are  reasonable  ones,  a  Court 
of  Equity  will,  if  possible,  decree  a  performance  of 
them. 


GORDOX  V.  GORDOX. 

[3  Swanst.  -iOO.] 

Because  the  3'ounger  brother  disputed  his  elder 
brother's  legitimacy,  the  latter  was  induced  to  enter 
into  a  compromise  with  the  former  for  the  settlement  of 
the  family  estates.  At  the  time  of  the  compromise, 
however,  the  3'ounger  brother  was  aware  of  a  private 
marriage  that  had  taken  place  between  his  father  and 
mother  and  this  was  not  communicated  to  the  other. 
The  legitimacy  of  the  elder  brother  by  reason  of  their 
private    marriage    was    afterwards    established,    and 


EQUITY    CASES    SIMPLIFIED.  97 

althoiio;]!  nineteen  years  had  elapsed,  the  Court  of 
Chancery  decided  that  the  compromise  must  be 
rescinded  because  of  the  coiiceahnent  by  the  younger 
brother  of  the  fact  of  the  private  marriage,  and  that  it 
mattered  not  Avhether  the  omission  to  disclose  it 
orginated  in  design  or  in  an  honest  opinion  of  the 
invalidity  of  the  ceremony  and  a  want  of  obligation  on 
his  part  to  make  the  communication. 

A  mistake  is  defined  as  "some  iinintentioual  act,  omissioa  or 
error,  arising  from  igaorauce,  surprise,  imposition,  or  misplaced 
confidence."  When  the  mistake  arises  from  imposition  or  mis- 
placed confidence,  equity  relieves  on  the  ground  of  fraud;  but 
equity  also  relieves  when  there  is  no  fraud  —  on  the  simple  ground 
of  mistake.  Mistakes  are  of  two  kinds,  (1)  as  to  matters  of  law, 
(2)  as  to  matters  of  fact. 

As  a  general  rule  ignorance  of  the  law  excuses  no  one  —  ignoran- 
tia  legis  neminem  excusat  —  and  this  maxim  is  as  much  observed  in 
equity  as  in  law.  Therefore,  ordinarily,  as  in  Hunt  v.  Rousmaniere, 
supra,  an  agreement  entered  into  in  good  faith,  though  under  a  mis- 
take of  law,  will  be  held  valid  and  obligatory  upon  the  parties,  in 
equity  as  well  as  in  law.  But  there  are  some  exceptions  to  this 
rule ;  and  equity  icill  relieve  against  a  mistake  of  law  — 

1.  ]V}iere  a  parUj  acts  under  ignorance  of  a  plain  and  loell-knoivn 
principle  of  laio,  as  where  the  mistake  is  one  of  title  arising  from 
ignorance  of  a  principle  of  law  of  such  constant  occurrence  as  to  be 
supposed  to  be  understood  by  the  community  at  large.  The  case 
of  Landsdowue  r.  Landsdowne  given  above  is,  on  this  exception, 
the  reason  of  which  is,  that  a  mistake  in  such  a  matter  affords  a 
conclusive  presumption  of  ignorance,  imposition  or  the  like. 

2.  Where  surprise  is  combined  with  a  mistake  of  law.  Tyson  v. 
Tyson,  31  Md.  13i. 

But  whei'e  the  mistake  arises  on  a  doubtful  point  of  law,  a  com- 
promise fairly  entered  into  is  encouraged  in  equity  and  will  be  up- 
held. And  family  compromises  especially,  as  was  held  in  Stapleton 
V.  Stapleton,  are  favored  by  courts  of  chancery.  *'  Wherever 
doubts  and  disputes  have  arisen  with  regard  to  the  rights  of  differ- 
ent members  of  the  same  family,  and  especially  where  those  doubts 
have  related  to  a  question  of  legitimacy,  and  fair  compromises  have 

7 


98  EQUITY   CASES    SIMPLIFIED. 

been  entered  into  to  preserve  the  harmony  and  affection,  or  to  save 
the  honor  of  the  family,  those  arrangements  have  been  sustained 
by  the  court,  albeit,  perhaps,  resting  upon  grounds  which  would 
not  have  been  considered  as  satisfactory  if  the  transaction  had  oc- 
curred between  strangers."  Westby  v.  Westby,  2  Dr.  &  War.  503. 
But,  as  was  held  in  Gordon  v.  Gordon,  there  must  be  a  full  and  fair 
communication  of  all  material  circumstances  which  are  within  the 
knowledge  of  the  parties,  whether  such  information  be  asked  or 
not;  otherwise  the  compromise  will  not  be  upheld. 

II.  As  to  mistakes  of  fact  see  next  cases. 


EQUITY    CASES    SIMPLIFIED.  99 


3ns  TAKES  OF  FACT. 


BRO^VN  V.  LAMPHEAR. 

[35  Vt.  252.] 

Martin  Brown,  of  Vermont,  conveyed  to  Calvin  Lam- 
phear,  a  lot  of  land  on  which  was  a  spring  from  which 
Brown,  by  means  of  an  aqueduct,  supplied  his  own 
house  with  water.  This  aqueduct  was  of  greater 
value  to  Brown  than  the  price  he  received  for  the  land. 
By  the  mistake  of  Brown,  who  never  intended  to  part 
with  the  use  of  the  water  from  the  spring,  the  deed  to 
Lamphear  contained  no  reservation  of  such  right ;  but 
Lamphear,  when  he  purchased,  had  no  knowledge  of  the 
existence  of  the  spring.  Finding  out  what  he  had 
done,  Brown  filed  a  bill  in  chancery,  and  that  court 
held  that  he  was  entitled  either  to  a  conveyance  from 
Lamphear  of  the  right  to  use  the  spring  or  to  a  recon- 
veyance of  the  land  on  repaying  to  Lamphear  the 
purchase  price,  and  that  Lamphear  might  elect  which 
he  would  do.  "  Where  a  mistake  in  a  conveyance,"  said 
the  court,  "  is  of  so  fundamental  a  character  that  the 
minds  of  the  parties  have  never,  in  fact,  met ;  or  where 
an  unconscionable  advantage  has  been  gained,  by  mere 
mistake  or  misapprehension,  and  there  was  no  gross 
negligence  on  the  part  of  the  plaintiff,  either  in  falling 
into  the  error,  or  in  not  sooner  claiming  redress,  and 


100  EQUITY    CASES    SIMPLIFIED. 

no  intervening  rights  have  accrued,  and  the  parties 
may  still  be  placed  i)i  statu  quo,  a  court  of  equity  will 
interfere,  in  its  discretion,  to  prevent  intolerable  in- 
justice." 

We  have  seen  that  equity  will  not,  as  a  rule,  remedy  mistakes  of 
law;  but  as  to  mistakes  of  fact  it  is  just  the  opposite.  Here  the 
general  rule  is  that  an  act  done  or  contract  made  under  a  mistake, 
or  in  ignorance  of  a  material  fact,  is  voidable  and  relievable  in 
equity.  But  this  relief  is  given  only  where  the  mistake  of  fact 
constitutes  a  material  ingredient  in  the  contract  of  the  parties,  or 
disappoints  their  intention  by  a  mutual  error,  Avhere  it  is  inconsis- 
tent with  good  faith  and  proceeds  from  a  violation  of  the  obliga- 
tions which  are  imposed  by  law  upon  the  conscience  of  either  party. 
Therefore,  where  each  party  is  equally  innocent,  and  there  is  no 
concealment  of  facts  which  the  other  party  has  a  right  to  know,  and 
no  surprise  or  imposition  exists,  the  mistake  or  ignorance,  whether 
mutual  or  uuilaterial,  is  treated  as  laying  no  foundation  for  equita- 
ble interference.  Snell,  Eq.  439.  The  jurisdiction  of  equity  under 
the  head  of  mistake  is  exercised  principally  in  reforming  written 
documents  so  as  to  conform  to  the  intention  of  the  parties,  which, 
through  mistake  or  ignorance,  has  not  been  expressed,  viz. :  — 

1 .  Equity  will  rectify  mistakes  in  deeds  and  icritten  contracts. 

2.  Equity  loill  relieve  lohere  instruments  have  been  delivered  up  or 
cancelled  under  a  mistake. 

3.  Equity  will  remedy  the  defective  execution  of  powers  through 
mistake.  Here  the  same  general  principles  are  applicable  as  in  cases 
of  defective  execution  arising  from  accident.     See  ante,  p.  86. 

4.  Equity  loill  correct  mistakes  in  iciUs.  In  regard  to  these  there 
is  no  doubt  that  courts  of  equity  have  jurisdiction  to  correct  them 
when  they  are  apparent  on  the  face  of  the  will,  or  may  be  made  out 
by  a  due  construction  of  its  terms,  for  in  all  cases  of  wills  the  in- 
tention will  prevail  over  the  words.  But  then  the  mistake  must  be 
apparent  on  the  face  of  the  will,  otherwise  there  can  be  no  relief; 
for  parol  evidence,  or  evidence  dehors  the  will,  is  not  admissible  to 
vary  or  control  the  terms  of  the  will,  although  it  is  admissible  to 
remove  a  latent  ambiguity."     Snell,  Eq.  '^43. 


EQUITY    CASES    SIMPLIFIED.  101 

In  conclusiou,  there  are  cases  in  which  equity  will  not  relieve 
against  a  mistake  of  fact.     They  are  :  — 

1.  Where  the  equities  are  equal,  e.g.,  equity  will  not  give  relief 
against  a  bona  fide  purchaser  for  value. 

2.  Where  the  parties  are  volunteers. 

3.  Where  the  defect  is  declared  fatal  by  statute. 


102  EQUITY    CASES    SIMPLIFIED. 


FRAUD. 


CONTRACTS    IN  RESTRAINT    OF     MARRIAGE. 


MADDOX  \.  MADDOX. 

[11  Gratt.  804.] 

John  Maddox,  a  member  of  the  Society  of  Friends^ 
by  his  will  gave  a  legacy  to  his  niece,  Ann  Maria, 
"  during  her  single  life,  and  forever  if  her  conduct 
should  be  orderly,  and  she  remain  a  meral)er  of  the 
Society  of  Friends."  Now,  it  w^as  a  rule  of  the  soci- 
ety that  a  member  who  married  an  outside  person 
thereby  forfeited  his  membership.  This  was  rather 
hard  on  Ann  Maria,  for  when  she  arrived  at  a  marriage- 
able age  there  were  but  half  a  dozen  unmarried  Quakers 
in  that  part  of  Virginia.  And,  to  make  things  worse, 
there  was  one  Thomas  Tiller,  who  "was  not  a  Friend, 
but  who  was  very  sweet  on  Ann  Maria.  The  student 
will  not  be  surprised  to  hear  that  she  very  soon  became 
Mrs.  Tiller,  and  that,  when  the  other  relations  heard 
of  it,  they  brought  a  suit  to  obtain  her  legacjs  on  the 
ground  that  it  was  forfeited   bv  the  terms  of  the  will. 

But  the  court  held  that  Mrs.  T.,  nee  Ann  Maria, 
should  keep  the  legacy.  The  condition  was  void,  they 
said,  for  two  reasons.  In  the  first  place,  it  infringed 
the  perfect,  absolute  and  unqualified  freedom  of  relig- 


EQUITY    CASES    SIMPLIFIED.  103 

ions  opinion  which  the  civil  institutions  of  Virginia  se- 
cured to  all  who  dwelt  under  them. 

And  in  the  second  place,  the  condition  was  void,  be- 
cause the  marriage  of  the  legatee  to  any  one  who  was 
not  a  Quaker  would  lead  to  her  expulsion  from  the 
Society  of  Friends  and  a  consequent  forfeiture  of  the 
legacy.  "  Conditions  in  restraint  of  marriage  annexed 
to  gifts  and  legacies,"  said  Lee,  J.,  "are  allowed 
when  they  are  reasonable  in  themselves,  and  do  not 
unduly  restrict  a  just  and  proper  freedom  of  choice. 
But  where  a  condition  is  in  restraint  of  marriage  gen- 
erally, it  is  deemed  to  be  contrary  to  public  policy,  at 
war  with  sound  morality,  and  directly  violative  of  the 
true  economy  of  social  and  domestic  life.  Hence, 
such  a  condition  will  be  held  utterly  void." 


104  EQUITY    CASES    SIMPLIFIED. 


BARGAINS   WITH  HEIRS. 


CHESTERFIELD  v.  JANSSEX. 

[2  Ves.  12.-,;   1  Wh.  &  Tud.  Ld.  Cas.  Eq.  592. J 

Sir  Abraham  Jiiiisseu  was  a  money-lender,  and  Mr. 
Spencer  was  a  rake,  pressed  for  money,  but  with  great 
expectations  from  his  grandmother,  the  Duchess  of 
Marlborough.  The  old  lad}^  was  seventy-eight  years 
old,  while  the  grandson  was  onh^  thirty.  This  l)eing 
the  state  of  affairs  Mr.  Spencer  borrowed  £.5,000  of 
Janssen,  promising  to  pay  £10,000  if  he  survived  the 
Duchess,  and  nothing  if  she  survived  him.  He  sur- 
vived her,  and  after  her  death  gave  the  money-lender 
a  bond  for  £10,000,  and  paid  a  part  of  it.  ]Mr.  Spen- 
cer afterwards  died  and  his  executrix  tiled  a  bill  in 
chancery  to  be  relieved  from  piwing  the  l)ond  because 
it  was  usurious  and  unconscionable. 

But  the  court,  without  deciding  whether  relief  would 
have  been  given  against  the  original  transaction,  held 
that  no  relief  could  now  be  given,  ]Mr.  Spencer  hav- 
ing, by  his  acts  after  his  grandmother's  death,  ratified 
the  transaction. 

In  the  great  case  of  Chesterfield  v.  Janssen,  Lord  Chancellor 
HAKinviCKE  divided  frand  into  four  classes:  — 

1 .  Fraud  arising  from  the  facts  and  circumstances  of  imposition. 

2.  Fraud  arising  from  the  intrinsic  matter  of  the  bargain  itself. 

3.  Fraud  arising  from  the  circumstances  and  condition  of  the 
parties. 

4.  Fraud  affecting  third  persons  not  parties  to  the  agreement. 


EQUITY    CASES    SIMrLIFIED.  105 

1.  The  first  of  these  divisions  embraces  what  is  known  as  actual 
fraud,  the  others  what  is  called  constructive  fraud.  Actual  fraud 
is  defined  as  "something  said,  done  or  omitted  with  the  design  of  per- 
petrating what  the  party  must  have  l^nown  to  be  a  positive  fraud." 
Snell,  Eq.  449.  Actual  fraud  arises  (a)  where  there  has  been  a  mis- 
representation, or,  as  the  lawyers  say,  suggestio  falsi,  and  (b)  where 
there  has  been  a  concealment  or  suppressio  veri.  A  misrepresenta- 
tion amounts  to  fraud  as  to  which  equity  will  relieve  when  it  Is  of 
some  material  fact  as  to  which  there  is  a  confidence  reposed  in 
the  party  making  it,  and  the  other  party  is  misled  to  his  prejudice. 
And  a  concealment  is  a  ground  for  equitable  relief  only  whei-e  the 
party  was  under  a  legal  obligation  to  disclose. 

The  last  three  of  Lord  Hardwicke's  divisions  of  fraud  are 
known  as  constructive  frauds.  "  By  constructive  frauds  are  meant 
such  acts  or  contracts  as,  although  not  originating  in  any  actual 
design  or  contrivance  to  perpetrate  a  positive  fraud  or  injury  upon 
other  persons,  are  yet,  by  their  tendency  to  deceive  or  mislead  other 
persons,  or  to  violate  private  or  public  confidence,  or  to  Impair  or 
injure  the  public  interests,  deemed  equally  reprehensible  with  posi- 
tive fraud,  and  therefore  are  prohibited  by  law  as  being  acts  and 
contracts  done  malo  animo.''^  Snell,  Eq.  4G4.  Chesterfield  ■;;.  Jans- 
sen  illustrates  one  of  the  cases  of  fraud  of  this  kind.  For,  although 
in  that  case  no  relief  was  given  because  of  confirmation  by  Mr. 
Spencer  o'f  the  transaction,  yet  the  particular  subject  of  bargains 
with  expectant  heirs  was  there  much  considered.  As  to  these,  the 
rule  in  equity  is  to  set  them  aside,  unless  the  purchaser  can  show 
that  he  paid  full  consideration,  or  that  the  bargain,  being  made 
known  to  those  to  whose  estate  the  expectant  was  hoping  to  suc- 
ceed, was  approved  of  \yy  them.  In  a  more  recent  case  (Nevill  v. 
Snelling,  15  Ch.  Div.  G79),  the  plaintiff  was  the  youngest  sen  of  a 
marquis,  who  was  a  large  landed  proprietor,  but  he  (the  plaintiff) 
had  no  property  or  expectations  except  such  as  might  be  founded  on 
the  position  of  his  father.  The  defendant  had  lent  him  money 
without  any  thought  of  repayment  by  the  borrower  from  his  own 
personal  resources,  but  on  the  credit  of  his  general  expectations, 
and  in  the  hope  of  extorting  payment  from  the  father  to  avoid  the 
exposure  attendant  on  the  son's  being  made  a  bankrupt.  Relief 
was  given  by  the  court,  Mr.  Justice  Denman  holding  that  the  prin- 
ciple on  which  equity  has  granted  I'elief  from  an  unconscionable 
bargain  entered  into  with  an  expectant  heir  or  reversioner  for  the 
loan  of  money,  applied  equally  to  the  case  of  such  a  transaction  as 
this,  though  the  plaintiff  was  not  an  expectant  in  the  strict  sense  of 
the  term. 


106  EQUITY    CASES    SIMPLIFIED. 

Other  cases  of  constructive  frauds  of  this  class  are :  — 

(a.)  Marriage  brokage  contracts.  See  as  to  these  the  rule  of 
law  as  laid  down  in  Lawson  Ld.  Cas.  Simplified,  Vol.  I.  p.  103. 

(6.)  Secret  agreements  in  fraud  of  marriage. 

(c.)  Rewards  for  influencing  another  person  in  making  a  will. 

{d.)  Contracts  in  restraint  of  marriage.  Maddox  v.  Maddox  is 
on  this  point.  It  must  be  noted  that  if  the  condition  is  only  in  par- 
tial restraint  of  marriage,  and  is  reasonable,  it  will  be  upheld.  A 
condition  against  the  second  marriage  of  a  widow  is  held  to  be 
reasonable. 

(e.)  Contracts  in  restraint  of  trade.  See  MItchel  v.  Reynolds, 
1  Lawson  Ld.  Cas.  Simplified,  101. 

(/.)  Contracts  for  the  sale  of  office  and  the  like.  See  Gulick  v. 
Ward,  1  Lawson  Ld.  Cas.  Simplified,  87. 

As  to  frauds  under  the  third  and  fourth  classes  see  the  next  cases. 


EQUITY   CASES    SIMPLIFIED.    •  107 


BARGAINS  BETWEEN  PERSONS  IN  FIDUCIARY 
RELATION. 


HUGUENIN  V,   BASELEY. 

[14  Ves.  273;  2  Wh.  &  Tud.  Ld.  Cas.  £q.  547.] 

The  Rev.  Mr.  Baseley  so  effectually  gained  the  con- 
fidence of  Mrs.  Hugaeuin,  who  was  then  a  rich  Avidow, 
that  she  took  her  affairs  out  of  her  solicitor's  hands 
and  placed  them  in  the  clergyman's.  The  latter,  with 
her  sanction  and  at  her  request,  undertook  the  man- 
agement of  her  property  ;  and  she  afterwards  executed 
a  voluntary  settlement  of  some  valuable  propertv  in 
favor  of  him  and  his  family.  Mrs.  Huguenin  having 
subsequently  married,  a  suit  was  brought  by  her  and 
her  husband  for  the  purpose  of  setting  aside  the  set- 
tlement. 

The  court  ordered  that  the  settlement  should  be  set 
aside,  as  obtained  by  undue  influence  and  abused  confi- 
dence in  the  defendant  as  an  agent  undertakino-  the 
manasrement  of  her  affairs. 

o 

The  above  case  forms  an  instance  of  a  constructive  fraud,  and 
proceeds  upon  tlie  ground  of  the  confidential  relation  existing  be- 
tween the  parties ;  for  it  is  a  rule,  that  when  any  such  confidence 
exists,  and  the  party  in  whom  it  is  reposed  makes  use  of  it  to  obtain 
an  advantage  to  himself  at  the  expense  of  the  party  confiding,  he 
will  never  be  allowed  to  retain  any  such  advantage,  however  unim- 
peachable such  transaction  would  have  been  if  no  such  confidence 
had  existed.  This  is  upon  the  general  principles  of  public  policy. 
And  gifts  from  child  to  parent;  from  ward  to  guardian;  from  client 
to  attorney;  ivom  cestui  que  trust  to  trustee,  all  come  within  this 
rule. 


108  EQUITY    CASES    SIMPLIFIED. 

As  to  frauds  upon  third  parties,  tiiey  may  be  divided  into  three 
classes,  viz. :  — 

1.  Frauds  upon  creditors.     See  Sexton  v.  Wheaton,  post,  p.  109. 

2.  Frauds  upon  marital  rights.     See  Countess  of  Strathmore  v. 
Bowes,  post,  p.  111. 

3.  Frauds  upon  powers.     See  Aleyn  v.  Belchier,  2^ost,  p.  113  . 


EQUITY   CASES   SIMPLIFIED.  109 


FRAUDS  UPON  CREDITORS. 


SEXTOX  V.  WHEATON. 

[8  Wheat.  229;   1  Am.  Ld.  Cas.  1.] 

Joseph  Wheaton,  who  had  for  several  years  held  a 
government  office,  owned  a  house  and  lot  in  the  city  of 
Washington,  Avhere  he  lived.  In  March,  1807,  he  con- 
veyed it  to  his  wife,  and  in  1809  went  into  a  mer- 
cantile business.  But  in  this  line  he  was  not  success- 
ful;  for  within  two  years  he  failed,  and  a  lot  of 
creditors  were  hunting  for  assets  to  liquidate  their  de- 
mands. Not  finding  enough  of  Joseph's  property  to 
satisfy  them,  the  creditors  tiled  a  hill  in  equity  to  have 
the  conveyance  to  the  Avife  set  aside,  and  the  property 
applied  to  the  payment  of  the  husband's  debts,  basing 
their  claim  on  a  well  known  statute  (13  Eliz.,  ch.  5), 
which  declares  that  all  conveyances  (except  bona  fide 
transfers  for  a  good  consideration),  made  with  intent 
to  hinder,  delay,  and  defraud  creditors,  shall  be  void 
as  against  the  parties  intended  to  be  injured. 

But  the  court  decided  that  they  only  avoided  con- 
veyances as  to  those  who  were  creditors  at  the  time  of 
their  execution,  and  that  a  voluntary  conveyance  is 
good  against  those  who  become  creditors  afterwards, 
unless  it  is  made  with  the  fraudulent  intent  to  defeat 
their  claims.  Here  there  was  no  such  intent,  for  Mr. 
Wheaton  could  hardly  be  supposed  to  have  these  sub- 


110  EQUITY   CASES    SIMPLIFIED. 

sequent  creditors  in  his  mind  when  he  made  the  con- 
veyance to  his  wife. 

Of  course,  if  a  man  is  about  to  embark  in  a  hazardous  business, 
and  puts  his  property  in  his  wife's  hands  to  be  safe  in  the  event  of 
his  being  unsuccessful,  this  will  be  a  sufficient  indication  of  fraud, 
and  the  conveyance  may  be  set  aside. 


EQUITY    CASES    SIMPLIFIED.  Ill 


FRAUDS  UPON  MARITAL  RIGHTS. 


€OUNTESS   OF   STRATHMORE  v.  BOWES. 

[1  Ves.  22;  1  Wh.  &  Tud.  Ld.  Cas.  Eq.  406.] 

I  am  the  Countess  of  Strathraore, 
I  married  Bowes  and  rued  it  sore 
Yet  spoiled  his  uttermost  intent. 

By  cozenage  and  false  championry, 
Him  seemed  he  had  my  wealth  in  fee, 
And  it  was  all  in  settlement. 

Great  words  he  spake  in  this  despite 
Of  fraud  and  his  marital  right, 
In  vanity  his  words  were  spent. 

Lady  Strathraore  was  engaged  to  Mr.  Grey,  and  a 
short  time  before  the  event  was  to  come  off  she,  with 
his  approbation,  conveyed  her  property  to  trustees,  for 
her  separate  use.  But  Lady  Strathraore  was  incon- 
stant, for  hearing  that  a  Mr.  Bowes  had  fought  a  duel 
on  her  account,  she  straightway  consented  to  marry 
him.  Bowes  found  out  that  he  was  not  entitled  to  any 
of  her  property,  and  asked  to  have  the  conveyance  she 
had  made  to  the  trustees  set  aside.  The  court  held 
that  a  conveyance  by  a  wife,  whatsoever  may  be  the 
circumstances,  and  even  the  moment  before  the  mar- 
riage, \q  prima  facie  good,  and  becomes  bad  only  upon 
the  imputation  of  fraud,  and  that  if  a  woman  in  the 
course  of  a  treaty  of  marriage  with  her,  makes,  with- 
out notice  to  the  intended  husband,  a  conveyance  of 
any  part  of  her  property,  it  will  be  set  aside  because 
aftected  with  that  fraud. 


112  EQUITY    CASES    SIMPLIFIED. 

But  this  case,  the  court  said,  was  different,  the  settle- 
ment, indeed,  being  with  the  sanction  of  the  then 
intended  husband,  and  so  the  settlement  here  was  es- 
tablished. 

A  secret  conveyance  by  a  woman  pendinoj  a  marriage  engage- 
ment is  a  fraud  on  the  husband's  marital  rights,  although  he  did  not 
know  she  had  any  property. 

There  appears  to  be  one  exception  to  the  general  rule  laid  down 
in  Countess  of  Strathmore  v.  Bowes,  and  that  is  in  the  case  of  the 
previous  seduction  by  a  man  of  his  intended  wife,  for  it  has  been 
held  that,  as  the  husband  has,  bj'  his  conduct  before  the  marriage, 
put  it  out  of  the  wife's  power  to  make  any  stipulation  for  settle- 
ment of  her  property,  retirement  being  impossible  on  her  part,  a 
secret  settlement  made  by  her  shall  not  be  set  aside.  Taylor  w. 
Pugh,  1  Hare,  008 

It  was  also  formerly  supposed  that  another  exception  existed  in 
the  case  of  a  fair  settlement  by  a  widow  upon  her  children  by  a 
former  marriage,  but  the  authorities  do  not  appear  to  warrant  this, 
and  it  cannot  therefore  be  considered  as  an  exception,  for  "it  is 
conceived  that  a  provision  for  children  would  not  render  a  settle- 
ment valid  which  without  it  would  be  fraudulent;  for  although,  in 
the  execution  of  a  settlement,  so  far  as  it  makes  provision  for  her 
children,  a  wife  may  perform  a  moral  duty  towards  her  children, 
she  has  no  right  to  act  fraudulently  towards  her  husband;  and  she 
can  in  such  circumstances  only  reconcile  all  her  moral  duties, 
by  making  a  proper  settlement  on  her  children  with  the  knowledge 
of  her  intended  husband."  1  Wh.  &  Tud.  Ld.Cas.  Eq.  458;  Inder- 
maurLd.  Cas.  Eq.  59. 


EQUITY   CASES    SIMPLIFIED.  113 


FRAUDS  ON  POWERS. 


ALEYN   V.    BELCHIER. 

[1  Eden,  132 ;  1  Wh.  &  Tud.  Ld.  Cas.  Eq.  377.] 

From  his  uncle,  Edward  Aleyii  received  a  devise  of 
property  ivith  jyoiver  to  make  a  jointure  on  any  woman 
he  should  marry.  Edward  married  and  executed  the 
power  ill  favor  of  his  wife,  but  with  an  agreement  that 
she  should  only  receive  a  part  as  an  annuity  for  her 
own  benefit,  and  that  the  residue  should  be  applied  to 
the  payment  of  the  husband's  debts.  The  court  held 
that  this  was  a  fraud  upon  the  power,  and  its  execu- 
tion was  set  aside,  except  so  far  as  related  to  the  an- 
nuity, the  bill  containing  a  submission  to  pay  it,  and 
only  seeking  relief  against  the  other  objects  of  the  ap- 
pointment. 

"  No  point  is  better  established,"  said  the  court, 
"  than  that  a  person  having  a  power  must  execute  it, 
bona  fide  for  the  end  designed  ;  otherwise  it  is  corrupt 
and  void.  The  power  here  was  intended  for  a  jointure, 
not  to  pay  the  husband's  debts.  *  *  *  If  a  father  has 
a  power  to  appoint  amongst  children,  and  agrees  with 
one  of  them  for  a  sum  of  money  to  appoint  to  him,  such 
appointment  would  be  void." 

A  power,  as  here  used,  is  aa  authority  enabling  a  person  through 
the  medium  of  the  Statute  of  Uses  to  dispose  of  an  interest  vested 
in  himself  or  some  third  person.  Thus  land  may  be  conveyed  to 
A.  in  trust  for  such  uses  as  B.  should  appoint;  or  in  trust  for  such 
person  or  persons  generally  as  B.  should  appoint,  or  In  trust  for 
such  members  of  a  particular  class  — as  children,  grandchildren, 


114  EQUITY    CASES    SIMPLIFIED. 

etc. —  as  B.  should -appoint.  B.'s  right  ia  such  case  is  called  a 
power.  Bisp.  Eq.  256.  Powers  have  been  divided  into  three  kinds, 
viz.:  appendant,  in  gross,  and  collateral.  A  power  appendant  is 
where  the  person  to  whom  the  power  is  given  has  an  interest  in  the 
estate  to  which  it  is  annexed;  a  power  in  gross  is  where  a  person 
having  an  interest  in  the  land  has  power  to  create  an  estate 
therein,  but  only  to  take  effect  after  the  determination  of  his  own 
interest.  Both  powers  appendant  and  in  gross  may  be  defeasanced 
or  released.  Powers  collateral  are  those  given  to  persons  taking  no 
interest  in  the  land,  and  are  in  the  nature  of  trusts,  so  that  they 
cannot  be  extinguished  or  destroyed,  and  equity  will  give  assist- 
ance in  case  of  the  non-execution  of  such  powers.  See  Tud.  Ld. 
Cas.,  Con. 

Powers  may  also  be  divided  into  general  and  special  powers,  the 
former  being  where  there  is  a  general  power  to  appoint  in  favor  of 
any  person,  and  the  latter  where  the  appointment  is  limited  to  a 
particular  class;  and  with  regard  to  this  division  there  is  this  im- 
portant difference  as  regards  the  rule  against  perpetuities ;  general 
powers  having  no  tendency  or  perpetuity,  the  time  of  vesting  is 
reckoned,  not  from  the  creation,  but  from  the  execution  of  the 
power,  but  special  powers  having  such  a  tendency,  the  time  of 
vesting  runs  from  the  instrument  creating  the  power.  Indermaur's 
Ld.  Cas.  Eq.  15. 

It  is  well  settled  that  a  power  must  be  executed  bona  fide  for  the 
end  designed,  otherwise  it  is  void.  Aleyn  v.  Belchier  illustrates 
this;  the  power  to  raise  a  marriage  portion  for  the  wife  being  ex- 
ercised for  the  purpose  of  paying  the  appointer,  it  was  a  fraud  upon 
the  power  and  equity  set  the  transaction  aside. 


EQUITY   CASES    SIMPLIFIED.  115 


BONA  FIDE  PURCHASERS. 


BASSET  V.  NOSWORTHY. 

[Cas.  Temp.  Finch,  102;  2  Wh.  &  Tud.  Ld.  Cas.   Eq.  1.] 

A  bill  was  filed  by  an  heir-at-law  against  a  person 
claiming  as  purchaser  from  a  devisee  under  the  will  of 
his  ancestor  to  discover  a  revocation  of  the  will.  The 
defendant  pleaded  that  he  was  a  purchaser  for  valua- 
ble consideration  bona  fide,  without  notice  of  any  rev- 
ocation. 

The  court  held  that  this  plea  was  good,  and  upon 
proof  of  it  the  bill  was  dismissed. 

This  case  was  decided  upon  the  well  known  rule  that  equity  will 
never  gives  its  assistance  against  a  bona  fide  purchaser  who  had  no 
notice  of  any  adverse  title.  It  also  forms  an  illustration  of  the 
equitable  maxim,  "  wliere  the  equities  are  equal  the  law  will  pre- 
vail" ;  for  in  this  case  the  heir  at  law  had  an  equal  equity  with  the 
purchaser  from  the  devisee.  But,  as  the  latter  had  become  pos- 
sessed of  the  legal  estate,  his  title  was  the  best. 


116  EQUITY    CASES    SIMPLIFIED. 


SPECIFIC    PERFORMAIS^CE. 


NOT  GENERALLY  DECREED  OF  CHATTELS. 


CUDDEE  V.  RUTTER. 

[5  Vin.  Ab.  538,  pi.  21 ;  1  Wh.  &  Tud.  Ld.  Cas.   Eq.  786.] 

Cuddee  bouoht  from  Kutter  a  laroje  amount  of  South 
Sea  stock  to  be  delivered  on  the  20th  of  the  next 
November.  Before  the  time  of  delivery  South 
Sea  stock  went  up  very  high,  and  on  the  20th  of  No- 
vember, Rutter  did  not  tender  the  stock,  but  offered 
to  pay  the  difference.  Cuddee  would  not  hear  of  this, 
but,  thereupon  filed  a  bill  hi  chancery  asking  the  court 
to  compel  Rutter  to  transfer  the  stock  as  he  had  agreed. 
The  court,  however,  decided  against  him,  the  Lord 
Chancellor  saying  that  it  was  like  the  case  of  a  bargain 
for  corn  to  be  delivered  upon  a  day  certain  at  such  a 
price,  and  the  corn  is  not  delivered  according  to  the 
contract,  the  buyer  shall  not,  by  a  bill  in  equity,  compel 
the  seller  to  a  specific  performance  of  this  agreement, 
but  the  buyer  is  left  to  his  remedy  at  law  for  breach  of 
the  agreement  to  recover  damages;    i.e.,W\Q  differ- 


EQUITY    CASES    SIMPLIFIED.  117 

ence  between  the  price  agreed  on  by  the  parties,  and 
the  price  of  corn  upon  the  market  day. 

And  so  Cuddee  bad  to  be  content  with  the  differ- 
ence. 


118  EQUITY   CASES    SIMPLIFIED. 


ARTICLES    OF  SPECIAL  VALUE. 


PUSEY  V,  PUSEY. 

[1  Vern.  173;  1  Wh.  &Tud.  Ld.  Cas,   Eq.  820.] 

The  title  to  the  Manor  of  Piisey,  in  England,  was  held 
by  a  horn  which  had  been  given  to  the  first  owners  by 
King  Canute,  and  which  bord  this  inscription  : — 

Kyng  Knowd  geve  Wyllyara  Pewse 
This  horn  to  hold  t^y  thy  lond. 

The  plaintiff  who  was  heir  to  the  propert}^  filed  a 
bill  asking  that  the  defendant  be  ordered  to  deliver  it 
up  ;  and  the  court  so  ordered. 


DUKE  OF  SOMERSET  v.  COOKSON. 

[3.P.  Wms.  389 ;  1  Wh.  &  Tud.  Ld.  Cas.  Eq.  821.] 

The  Duke  of  Somerset  owned  an  old  altar-piece  made 
of  silver,  remarkable  for  a  Greek  inscription  and  dedi- 
cation to  Hercules.  It  had  been  sold  by  one  who  had 
got  possession  of  it,  to  Cookson,  a  goldsmith. 

The  Duke  prayed  the  court  to  order  Cookson  to  de- 
liver it  up,  which  was  done. 

At  common  law  a  party  who  agrees  to  do  a  certain  thing  cannot 
be  compelled  to  do  it ;  all  the  court  can  do  is  to  award  damages  for 
the  breach.  Courts  of  equity,  however,  ichere  damages  are  not  an 
adequate  recompense  will  require  him  to  carry  out  his  contract,  or  in 
other  words,  will  decree  specitic  performance  of  the  agreement. 


EQUITY   CASES   SIMPLIFIED.  119 

In  the  case  of  chattels,  damages  are  usually  a  suflkient  compen- 
sation for  the  breach  of  an  agreement  to  deliver  or  for  their  deten- 
tion from  the  real  owner.  Therefore,  the  jurisdiction  of  equity  to  ' 
decree  specific  performance  is  extended  only  to  cases  "where  the 
party  wants  the  thing  in  specie  and  he  cyanot  otherwise  be  com- 
pensated; that  is  where  an  award  of  damages  would  not  put  him 
in  a  situation  as  beneficial  as  if  the  agreement  were  specifically  en- 
forced, or  where  the  compensation  in  damages  would  fall  short  of 
the  redress  which  his  situation  might  require.  The  general  rule  is 
not  to  entertain  jurisdiction  to  decree  a  specific  performance  re- 
specting goods,  chattels,  stocks,  choses  in  action,  and  other  things 
of  a  mere  personal  nature ;  but  the  rule  is  qualified  and  is  limited 
to  cases  where  a  compensation  in  damages  would  furnish  a  com- 
plete and  satisfactory  remedy."  Phillips  v.  Berger,  2  Barb.  009;  8 
Id.  527.  The  cases  where  equity  will  decree  specific  performance 
are :  — 

1 .  Wliere  the  chattel  is  of  such  a  nature  that  its  loss  cannot  be  com- 
pensated for  in  damages.  Pusey  v.  Pusey,  and  Duke  of  Somerset  v. 
Cookson,  illustrate  this  rule.  As  said  in  one  case:  "The  Pusey 
horn,  the  altar-piece  of  the  Duke  of  Somerset,  were  things  of  that 
sort  of  value  that  a  jury  might  not  give  two-pence  beyond  the 
weight.  It  was  not  to  be  cast  to  the  estimation  of  people  who  have 
not  these  feelings.  In  all  cases  where  the  object  of  the  suit  is  not 
liable  to  a  compensation  by  damages,  it  would  be  strange  if  the  law 
of  this  country  did  not  afford  any  remedy.  It  would  be  great  in- 
justice if  an  individual  cannot  have  his  property  without  being 
liable  to  the  estimate  of  people  who  have  not  his  feelings  upon  it." 
Fells  V.  Reed,  3  Vesey,  71.  Other  cases  where  damages  would  not 
compensate  may  be  mentioned.  Thus,  though  as  settled  in  Cuddee 
V.  Rutter,  the  specific  execution  of  a  contract  to  deliver  stock  will 
not  be  decreed,  yet  when  the  kind  of  stock  is  limited,  it  may  be. 
"  I  agree,"  said  the  Vice-Chancellor,  in  Duncuft  v.  Albrecht,  12  Sim. 
199,  "  that  it  has  long  since  been  decided  that  you  cannot  have  a 
bill  for  the  specific  performance  of  an  agreement  to  transfer  a  cer- 
tain quantity  of  stock.  But  in  my  opinion  there  is  not  any  sort  of 
analogy  between  a  quantity  of  three  per  cents  or  any  other  stock  of 
that  description,  which  is  always  to  be  had  of  any  person  who 
chooses  to  apply  for  it  in  the  market,  and  a  certain  number  of  rail- 
way shares  of  a  particular  description,  which  railway  shares  are 
limited  in  number,  and  which,  as  has  been  observed,  are  not  always 
to  be  had  in  the  market."  Another  great  Chancellor  has  put  the 
case  of  a  ship  carpenter  purchasing  timber  which  was  peculiarly 


120  EQUITY    CASES    SIMPLIFIED. 

convenient  to  him  by  reason  of  its  vicinity,  or  an  owner  of  land 
covered  vpith  timber  contracting  to  sell  it  in  order  to  clear  his  land, 
and  assumes  that  in  both  these  cases  equity  would  decree  a  specific 
performance.  Buxton  v.  Lister,  3  Atk.  385.  Every  case  depends 
on  the  particular  circumstances,  the  test  being,  are  damages  a  com- 
plete remedy? 

2.  Where  a  fiduciary  relation  exists  bettoeen  the  parties.  Here 
equity  to  prevent  an  abuse  of  power,  and  by  virtue  of  its  jurisdic- 
tion over  trustees,  will  nearly  always  interfere. 


EQUITY   CASE9   SIMPLIFIED.  121 


CONTRACTS  RELATING   TO  REAL  PROPERTY. 


SETON  V.  SLADE. 

[7  Ves.  2G5;  2  Wh.  &  Tud.  Ld,  Cas.  Eq.  513.] 

The  plaintiff  agreed  to  sell  certain  real  estate  to  de- 
fendant, and  it  was  agreed  that  he  should  make  a  good 
title  in  two  months.  Defendant  afterwards  gave  him 
a  notice  that  if  he  did  not  do  so  he  should  insist  on  the 
return  of  his  deposit  with  interest.  The  plaintiff, 
however,  only  delivered  his  abstract  of  title  a  few  days 
before  the  expiration  of  the  two  months,  which  the 
defendant  then  received  and  kept  without  objection. 
The  court  held  that  the  vendee,  under  the  circum- 
stances, was  not  entitled  to  insist  on  time  as  of  the 
essence  of  the  contract,  and  so  specific  performance 
was  decreed. 


■LESTER  V.  FOXCROFT. 

[1  Colles  P.  C.  108;  1  Wh.  &  Tud.  Ld.  Cas.  Eq.  768.] 

By  parol  merely,  Lester  agreed  that  he  would  pull 
down  certain  houses  on  Foxcroft's  land,  and  build 
other  new  ones  in  their  place  ;  and  in  consideration  of 
this  Foxcroft,  also  by  parol,  agreed  that  he  would  give 
Lester  a  long  lease  of  the  property.  Lester  went  to 
work,  pulled  down  the  houses  and  built  some  of  the 


122  EQUITY    CASKS    SIMPLIFIED. 

others,  but  when  he  applied  for  the  lease  Foxcroft  re- 
fused to  i^ive  it ;  and  when  Lester  threatened  to  go  to 
law  about  it,  referred  him  to  the  Statute  of  Frauds, 
which  requires  leases  of  lands  to  be  in  writing  to  be 
binding. 

But  Lester,  like  a  wise  man,  went  to  the  Court  of 
Chancery  and  asked  the  specific  performance  of  the 
contract  on  Foxcroft's  part.  And  what  is  more,  he 
got  it,  notwithstanding  the  Statute  of  Frauds,  on  the 
ground  of  his  own  part  performance  of  the  parol 
agreement. 


WOOLLAM  V.  HEARN. 

[7  Ves.  221  ;   2  Wh.  &  Tud.  Ld.  Cas.  Eq.  484.] 

The  plaintiff  filed  a  bill  for  the  specific  performance 
of  a  written  agreement.  This  agreement  when-  pro- 
duced provided  for  a  rent  of  $73.10  per  annum  ;  but 
the  plaintiff  said  that  this  was  a  mistake,  it  should 
only  have  been  $60,  "and  I  u-ant,"  he  said,  "the 
court  to  order  the  defendant  to  execute  me  a  lease  ac- 
cording to  the  agreement  with  this  variation ;  that  the 
rent  be  $'J0." 

But  the  court  refused,  on  the  ground  that,  though  a 
defendant  resisting  a  specific  performance  may  go  into 
parol  evidence  to  show  that  by  fraud  or  mistake  the 
written  agreement  does  not  express  the  real  terms,  the 
plaintiff  cannot  do  so  for  the  purpose  of  obtaining  a 
specific  performance  with  a  variation. 

We  have  seen  that  as  to  chattels,  courts  of  equity  do  not  usually 
decree  specilic  performance  —  damages  being,  as  a  rule,  a  sufficient 
recompense.     But  in  contracts  respecting  land  it  is  not  so.     The 


EQUITY   CASES    SIMPLIFIED.  123 

localit},  soil,  or  character  of  the  laud  gives  it  generally  a  peculiar 
value  in  the  eye  of  an  intending  purchaser,  so  that  it  cannot  be  re- 
placed by  other  land  of  the  same  precise  value,  but  not  having  the 
same  local  conveniences,  and  therefore  a  compensation  in  damages 
would  not  be  adequate  relief.  It  would  not  attain  the  object  de- 
sired, and  it  would  generally  frustrate  the  plans  of  the  purchaser, 
and  therefore  the  jurisdiction  of  courts  of  equity  to  decree  specific 
performance  is,  in  cases  of  contracts  respecting  lauds,  universally 
maintained,  whereas  in  cases  of  chattels  it  is  limited  to  special'cir- 
curastauces.     Snell,  Eq.  529. 

Seton  V.  Slade  shows  how  far  equity  will  go  in  enforcing 
agreements  concerning  land.  At  common  law  one  party  to  a  con- 
tract cannot  complain  of  a  breach  by  the  other,  unless  he  can  show 
his  own  compliance  with  its  terms  in  every  particular.  Seton  v. 
Slade  shows  that,  though  the  terms  may  not  have  been  strictly  com- 
plied with,  yet  specific  performance  may  be  decreed.  But  in  such 
a  case  the  court  will  take  care  to  make  proper  compensation.  And 
this  principle  of  decreeing  specific  performance  with  compensation 
is  applied  where  the  vendor  seeks  specific  performance  and  has  not 
exactly  the  interest  he  contracted  to  sell,  but  the  difference  is  not 
material ;  but  a  purchaser  cannot  be  forced  to  accept  lands  of  a  dif- 
ferent tenure  to  what  he  contracted  to  buy,  for  this  is  not  consid- 
ered a  matter  for  compensation. 

Lester  v.  Foxcroft  shows  that,  in  spite  of  Uie  Statute  of  Frauds 
requiring  agreements  as  to  lands  to  be  in  writing,  courts  of  equity 
consider  that  after  a  person  has  been  allowed  to  do  acts  in  part 
performance,  it  would  be  a  fraud  on  the  part  of  the  person  who  has 
allowed  him  to  do  such  acts  not  to  perform  his  part  of  the  contract. 
Acts  to  be  a  part  performance  must  be  exclusively  referable  to  the 
agreement,  and  such  acts  as  payment  of  purchase-money,  delivery 
of  abstract,  and  the  like,  ai'e  not  sufficient  part  performance ;  but 
letting  a  purchaser  into  possession  is. 

There  are  also  two  other  cases  in  which  specific  performance  of 
a  parol  contract  will  be  decreed;  and  they  are  (1)  where  it  is  fully 
set  forth  by  the  plaintiff  in  his  bill,  and  admitted  by  the  defendant 
in  his  answer,  and  he  does  not  insist  on  the  statute  as  a  defence ; 
and  (2)  where  the  agreement  was  intended  to  be  reduced  into 
writing  according  to  the  statute,  but  was  prevented  by  the  fraud 
of  one  of  the  parties. 

With  regard  to  the  decision  in  Woollara  v.  Hearn,  that  a  plaintiff 
cannot  get  specific  performance  of  acontract  with  a  parol  variation, 
though  good  as  a  general  rule,  yet  it  must  be  noted  that  there  are 


124  EQUITY    CASES    SIMPLIFIED. 

three  cases  in  which  a  plaintiff  may  so  obtain  specific  performance 
with  a  subsequent  parol  variation,  and  they  are  of  a  similar  nature 
to  the  three  cases  above  stated  in  which  specific  performance  will 
be  decreed  of  an  original  parol  contract,  viz. :  (I)  after  such  acts 
of  part  performance  of  the  parol  variation;  (2)  where  defendant 
sets  up  the  parol  variation,  and  plaintiff  seeks  specific  performance 
with  it;  and  (3)  where  it  has  not  been  put  into  writing  because  of 
fraud.    Indermaur  Ld.  Cas.  Eq.  87. 


EQUITY   CASES    SIMPLIFIED.  125 


WHEN  SPECIFIC  PERFORMANCE  NOT 
DECREED. 


DODSON   V.    SWAN. 

[2  W.  Va.  511.] 

Mr.  Dodson,  finding  tliat  he  was  indicted  by  the 
grand  jnry  of  Marsliall  County,  West  Virginia,  was  in 
a  hurry  to  leave  the  State,  and  was  advised  by  his 
friend  Swan  to  stand  not  on  the  order  of  his  going,  if 
he  did  not  wish  to  be  locked  up.  To  enable  him  to 
escape  money  was  necessary,  and  Swan,  like  a  good 
friend,  offered  to  buy  his  farm.  Dodson  agreed  ;  a 
contract  was  drawn  up,  and  Swan  paid  him  a  part  of 
the  purchase-money  for  travelling  expenses.  The 
storm  blew  over,  Dodson  came  back,  but  when  Swan 
tendered  him  the  balance  of  the  purchase-money,  in  ac- 
cordance with  the  agreement,  he  refused  to  convey  the 
property,  and  Swan  filed  a  bill  in  chancery  to  compel 
him. 

But  he  did  not  succeed.  "  It  is  well  settled,"  said 
the  court,  "that  where  a  contract  grows  out  of  an 
illegal  or  immoral  act,  a  court  of  justice  will  not  lend 
its  aid  to  enforce  it.  It  is  both  an  illegal  and  an  im- 
moral act  to  aid  or  assist  a  felon  to  avoid  or  escape 
from  prosecution  or  punishment." 

The  above  case  is  given  as  an  illustration  of  the  cases  iu  which  — 
whether  the  contract  be  personal  or  real  —  a  court  of  equity  — 
without  taking  into  consideration  whether  damages  are  a  sufficient 
relief  or  not  —  will  not  decree  specific  performance.    These  are :  — 

1 .  An  agreement  arising  out  of  or  providing  for  an  illegal  or  im- 
moral act. 


126  EQUITY    CASES    SIMPLIFIED. 

2.  An  ag.reement  without  consideration.  Thus  an  agreement  to 
make  a  gift  canuot,  as  a  rule,  be  specifically  enforced. 

3.  A  contract  which  the  court  has  no  means  to  enforce.  Thus  a 
singer  agrees  to  sing  at  a  certain  theatre,  but  when  the  time  comes 
refuses  to  carry  out  her  contract.  A  court  of  equity  will  not  decree 
its  specific  performance,  because  it  cannot  compel  her  to  sing. 
But  it  may  accomplish  this  result  indirectly,  by  restraiaing  her 
from  singing  any  where  else.  See  Lumley  v.  Wagner,  1  Lawson's 
Ld.  Cas.  Simp.  2G8. 

Other  contracts  of  this  class  are  contracts  to  transfer  the  good 
will  of  a  business,  to  build  and  repair  premises,  and  revocable  con- 
tracts. 

4.  Contracts  wanting  in  muttiality.  An  infant  cannot  maintain  a 
suit  for  specific  performance,  because  a  court  of  equity  cannot 
compel  a  specific  performance  against  him. 


EQUITY    CASES    SIMPLIFIED.  127 


JURISDICTION  OF  EQUITY—  ''EQUITY  ACTS  IN 
PERSONAM.  " 


PENN  V.  LORD  BALTIMORE. 

[1  Ves.  Ui:  2  Wh.  &  Tud.  Ld.  Cas.  Eq.  923.] 

The  names  of  the  parties  to  this  suit  are  familiar 
enough  to  the  American  student,  for  one  gave  liis  name 
to  a  great  State,  the  other  to  a  great  city.  They  had 
each  by  grants  from  the  King  of  Enghmd  obtained 
large  tracts  of  land  in  America,  notably  the  then  prov- 
inces of  Pennsylvania  and  Baltimore.  They  had  en- 
tered into  articles  settling  the  boundaries  of  these 
provinces,  and  the  defendant,  not  being  willing  to  exe- 
cute his  part,  Mr.  Penn  (both  he  and  Lord  Baltimore 
being  at  the  time  in  England )  sought  a  specific  per- 
formance of  the  articles  by  an  English  court  of  equity. 
Lord  Baltimore  objected  that  the  property  was  out  of 
the  jurisdiction  of  the  court. 

But  the  court  decided  that  Penn  was  entitled  to 
specific  performance  of  the  articles,  for  though  the 
court  had  no  original  jurisdiction  on  the  direct  ques- 
tion of  the  original  right  of  the  boundaries,  the  prop- 
erty being  abroad,  yet  that  did  not  at  all  matter,  as 
the  suit  was  founded  on  the  articles,  and  the  court 
acted  in  personam. 

The  above  case  forms  a  good  illustration  of  the  well-knowu 
maxim  or  principle,  "Equity  acts  in  personam;''''  a  maxim  which 
indeed  shows  the  great  difference  in  the  jurisdiction  of  equity  to 


128  EQUITY    CASES    SIMPLIFIED. 

that  of  law;  thus  at  law  the  only  remedy  on  a  breach  of  contract 
was  an  action  for  damages ;  but  in  equity,  as  the  court  acted  in 
personam,  the  party  could  always  be  compelled  to  do  the  very  act. 
So  in  this  case,  although  the  property  was  abroad,  and,  therefore, 
the  court  really  in  respect  of  the  property  had  no  jurisdiction,  yet 
the  parties  being  within  its  jurisdiction,  the  court  was  able  to 
award  the  proper  remedy,  acting  not  at  all  on  the  property,  but 
directly  on  the  persons. 


EQUITY    CASES    SlMrLlFIED.  129 


i^ju:n^ctioi^s. 


ENJOINING    PROCEEDINGS    AT   LAW. 


MARINE  INSURANCE  CO.  v.  HODGSON. 

[7  Cranch,  332.] 

The  schooner  'Sophia  Avas  insured  for  a  voyage  in 
the  Marine  Insurance  Company  for  $8,000  ;  and  being- 
captured  on  the  voyage,  the  owners  brought  an  action 
at  law  on  the  policy  and  recovered  judgment  for  the 
$8,000.  The  insurance  company  now  asked  a  Court 
of  Equity  to  enjoin  the  collection  of  this  judgment  on 
the  ground  that  the  owners  had  been  guilty  of  misrep- 
resentation in  obtaining  the  insurance.  It  was  argued 
by  their  counsel  that  a  court  of  equity  had  jurisdic- 
tion to  enjoin  proceedings  in  courts  of  law.  The  court 
decided  that  it  had.  "  Without  attempting,"  said  Chief 
Justice  Marshall,  "  to  draw  any  precise  line  to  which 
Courts  of  Equity  will  advance,  and  which  they  cannot 
pass,  in  restraining  parties  from  availing  themselves  of 
judgments  obtained  at  law,  it  may  safely  be  said  that 
any  fact  which  clearly  proves  it  to  be  against  conscience 
to  execute  a  judgment  and  of  which  the  injured  part}'^ 
could  not  have  availed  himself  in  a  court  of  law,  or  of 
which  he  might  have  availed  himself  at  law,  but  was 


130  EQUITY   CASES   SIMrLIFIED. 

prevented  by  fraud  or  accident,  unmixed  with  any  fault 
or  neijliijence  in  himself  or  his  ao;ents,  will  justify  an 
application  to  a  Court  of  Ch:incery." 

"  On  the  other  hand,"  said  the  judge,  "  it  may  with 
equal  safety  be  laid  down  as  a  general  rule  that  a  de- 
fence cannot  be  set  up  in  equity  which  has  been  fully 
tried  at  law,  although  it  may  be  the  opinion  of  the 
court  that  the  defence  ought  to  have  been  sustained  at 
law."  As  the  company  were  not  prevented  from 
making  the  defence  (the  false  representation)  in  the 
law  suit,  the  injunction  was  refused. 

Courts  of  law  could  redress  injuries,  after  they  were  committed, 
but  they  had  no  power  to  prevent  their  commission.  To  supply 
this  injustice  came  the  jurisdiction  of  equity  to  issue  an  injunction. 
An  injunction  is  defined  to  be  a  writ  issued  by  a  court  of  equity 
commanding  a  defendant  to  perform  some  act,  or  restaining  him 
from  the  commission  or  continuance  of  some  act.  Bisp.  Eq.  399. 
An  injunction  is  either  mandatory  or  prohibitory.  The  former 
compels  the  defendant  to  do  something;  tbe  latter  restrains  him 
from  doing  something.  But  the  former  is  not  much  used,  for  the 
order  of  a  court  of  equity  is  not  direct,  but  in  a  roundabout  way 
commands  while  it  apparently  prohibits.  Thus  if  A.  held  papers 
from  B.  and  obtained  the  aid  of  the  court,  the  writ  instead  of  com- 
manding A.  to  deliver  to  B.  the  papers,  would  order  A.  not  to  keep 
them  from  B. 

Injunctions  are  generally  issued  for  three  purposes,  viz. : 

I.  To  restrain  proceedings  at  law. 

II.  To  enforce  a  contract  or  to  forbid  a  breach  thereof. 

III.  To  prevent  a  tort,  i.e.,  a  wrong,  independent  of  contract. 

I.  To  restrain  proceedings  at  law.  The  right  of  a  Court  of  Chan- 
cery to  restrain  proceedings  in  the  law  courts  was  at  first  stoutly  re- 
sisted by  the  common  law  judges  as  impairing  their  dignity.  Earl 
of  Oxford's  Case,  1  Ch.  Kep.  1 ;  2  Wh.  &  Tud.  Ld.  Cas.  Eq.  601, 
Gil.  But  equity  does  not  attempt  to  dictate  to  the  law  court,  but 
acting  in  personam  enjoins  the  parties  from  proceeding.  This  juris- 
diction of  equity,  as  stated  by  Chief  Justice  Marshall  in  the  above 


EQUITY   CASES   SIMPLIFIED.  131 

case,  is  now  well  settled.    The  cases  ia  which  equity  vfillnot  stay 
proceedings  at  law  are  — 

1.  Where  the  matter  is  criminal. 

2.  Where  the  ground  of  defense  was  equally  available  at  law. 
See  Marine  Insurance  Co.  v.  Hogdson,  supra. 


132  EQUITY    CASES    SIMPLIFIED. 


INJUNCTIONS    TO    -RESTRAIN    VIOLATION    OF 
CONTRACTS. 


STEWARD  V.  AVINTERS. 

[4  Sandf.  Ch.  587.] 

Mr.  Steward  was  the  owner  of  the  store  No.  18 
William  Street,  New  York  Citj.  He  leased  it  to  Win- 
ters for  two  years,  the  lease  providing  that  the  store 
was  to  be  occupied  for  the  regular  drj^  goods  jobbing 
business,  and  for  no  other  kind  of  business.  Winters 
went  into  possession  and  immediately  began  to  make 
an  auction  mart  of  it.  Over  the  door  he  suspended  a 
red  flag,  and  advertisements  of  the  daily  auction  sales 
to  take  place  at  No.  18  appeared  every  morning  in 
the  newspapers.  Now,  Mr.  Steward  had  not  inserted 
that  covenant  in  the  lease  for  nothing;  he  had  an 
objection  to  auction  sales  in  his  buildmg,  and  he 
called  upon  Winters  to  stop  them.  But  the  latter 
would  do  nothing  of  the  kind,  and  Mr.  Steward  was 
obliged  to  apply  to  the  Court  of  Chancery  in  the 
matter. 


EQUITY   CASES    SIMPLIFIED.  133 

The  court  ordered  Winters  to  stop  the  auction  sales. 
"Where  the  parties,"  said  the  Vice-Chancellor,  "by 
an  express  slipuhition  have  themselves  determined  that 
a  particular  trade  or  business  conducted  by  the  one 
will  be  injurious  or  offensive  to  the  other,  and  there  is 
a  continuins:  breach  of  the  stipulation  by  the  one, 
which  this  court  can  perceive  may  be  highly  detrimen- 
tal to  the  other,  although,  on  the  facts  presented,  it  is 
not  clear  that  there  is  a  serious  injury,  and  it  is  mani- 
fest that  the  extent  of  the  injury  is  difficult  to  be  ascer- 
tained or  measured  in  damages,  it  is  the  duty  of  the 
court  by  injunction  to  restrain  further  infractions  of 
the  covenant,  thereby  preventing  a  multiplicity  of 
petty  suits  at  law,  and,  at  the  same  time,  protecting 
the  rights  of  the  complainant." 

The  jurisdictioa  of  equity  to  enjoin  the  doing  of  a  thing  is 
founded  upon  very  good  reasons.  In  many  cases  damages  are  no 
redress  to  the  sufferer  at  all.  But,  in  addition  to  this,  the  injury  is 
generally  a  continuing  one,  and  the  sufferer,  though  he  might  have 
obtained  damages  for  the  past  injury,  would  not  be  able  to  assess 
his  future  discomfort,  and  thus  would  be  put  to  the  expense  of 
bringing  a  suit  once  a  month  or  once  a  year,  as  the  case  may  be. 
Therefore  equity  intervenes,  and  to  prevent  irreparable  mischief 
which  could  not  be  compensated  by  a  money  judgment,  or  to  sup- 
press interminable  litigation,  orders  the  party  to  cease  his  injuri- 
ous acts. 

The  jurisdiction  of  equity  to  forbid  a  violation  of  the  terms  of 
a  contract,  is  coextensive  with  its  power  to  compel  specific  per- 
formance. Often,  where  the  court  cannot  decree  specific  perform- 
ance on  account  of  its  inability  to  carry  the  decree  into  effect,  it 
will  grant  an  injunction  to  restrain  the  doing  of  an  act  contrary  to 
that  agreed  on,  and  thus  indirectly  compel  a  specific  performance. 
This  was  the  singer's  case.  She  could  not  be  compelled  to  sing  at 
the  plaintiff's  theatre,  but  the  court  restrained  her  from  singing  at 


134  EQUITY   CASES   SIMPLIFIED. 

any  other,  and  thereby  the  same  end  was   attained.    Lumley  v. 
Wagner,  1  Lawaon's  Ld.  Cas.  Simp.  268. 

Sometimes  the  contract  is  not  to  do  a  thing.    Here  equity  can 
act  directly,  as  in  the  case  of  Steward  v.  Winters,  above. 


EQUITY    CASES    SIMPLIFIED.  135 


RESTRAINING  NUISANCES. 


ST.  HELEN'S   SMELTING  CO.  v.  TIPPING. 

[11  H.  L.  Cas.  642;  L.  R.  1  Ch.  66.] 

Mr.  Tipping,  of  Lancashire,  manifested  his  objec- 
tions to  smoke  in  a  very  practical  way.  Having  pur- 
chased a  house  and  grounds  situated  within  a  short 
distance  of  the  works  of  a  copper  smelting  company, 
he  found  very  soon  that  to  live  in  that  region  was  sim- 
ply out  of  the  question.  From  the  tall  chimneys  of 
the  works  smoke  and  noxious  vapors  issued  night  and 
day  ;  it  injured  his  trees  and  shrubbery  ;  made  his  cat- 
tle sick,  and  rendered  his  own  existence  intolerable. 
Mr.  Tipping  therefore  resorted  to  an  action  for  dam- 
ages. The  company  proved  that  the  whole  neigh- 
borhood was  studded  with  manufactories  and  tall 
chimneys  ;  that  there  were  some  alkali  works  close  to 
their  own,  whose  smoke  was  quite  as  injurious  as  theirs, 
and  that  the  smoke  of  both  sometimes  united,  making 
it  impossible  to  say  to  Avhich  of  the  two  any  particular 
injury  was  attributable.  They  also  relied  on  the  fact 
that,  their  works  had  existed  before  the  defendant 
bought  his  property.  Nevertheless,  Mr.  Tipping  re- 
covered £361  damages,  and  although  the  company 
carried  the  case  all  the  way  to  the  House  of  Lords,  all 
the  judges  thought  him  entitled  to  the  verdict. 

"In  matters  of  this  description,"  said  Lord  Chan- 
cellor Westbury,  "  it  appears  to  me  that  it  is  a  ver}' 
desirable  thins:  to  mark  the  difference  between  an  action 


136  EQUITY    CASES    SIMPLIFIED. 

brought  for  a  nuisuiice  upon  the  ground  that  the 
alleged  nuisance  produces  material  injury  to  the  prop- 
erty, and  an  action  brought  for  a  nuisance  on  the 
ground  that  the  thing  alleged  to  be  a  nuisance  is  pro- 
ductive of  sensible  personal  discomfort.  With  regard 
to  the  latter,  namely,  the  personal  inconvenience  and 
interference  with  one's  enjoyment,  one's  quiet,  one's 
personal  freedom,  anything  that  discomposes  or  injuri- 
ously affects  the  senses  or  the  nerves,  whether  that 
may  or  may  not  be  denominated  a  nuisance,  must  un- 
doubtedly depend  greatly  on  the  circumstances  of  the 
the  place  where  the  thing  complained  of  actually  occurs. 
If  a  man  lives  in  a  town,  it  is  necessary  that  he  should 
subject  himself  to  the  consequences  of  those  opera- 
tions of  trade  which  may  be  carried  on  in  his  imme- 
diate locality,  which  are  actually  necessary  for  trade 
and  commerce,  and  also  for  the  enjoyment  of  property, 
and  for  the  benefit  of  the  inhabitants  of  the  town  and 
of  the  public  at  large.  If  a  man  lives  in  a  street 
where  there  are  numerous  shops,  and  a  shop  is  opened 
next  door  to  him,  which  is  carried  on  in  a  fair  and 
reasonable  way,  he  has  no  ground  for  complaint,  be- 
cause to  himself  individually  there  may  arise  much 
discomfort  from  the  trade  carried  on  in  that  shop. 
But  when  an  occupation  is  carried  on  by  one  person  in 
the  neighborhood  of  another,  and  the  result  of  that 
trade,  or  occupation,  or  business,  is  a  material  injury  to 
property,  then  there  unquestionably  arises  a  very  dif- 
ferent consideration.  I  think,  my  lords,  that  in  a  case 
of  that  description,  the  submission  which  is  required 
from  persons  living  in  society  to  that  amount  of  dis- 
comfort which  may  be  necessary  for  the  legitimate  and 
free  exercise  of  the  trade  of  their  neighbors,  would  not 


EQUITY    CASES    SIMPLIFIED.  187 

apply  to  the  circumstances,  the  immediate  result  of 
which  is  sensible  injury  to  the  value  of  property." 
And  the  judges  held,  also,  that  the  fact  that  the  local- 
ity where  the  offensive  trade  was  carried  on  was  one 
generally  employed  for  the  purpose  of  that  and  similar 
trades,  would  not  exempt  the  company  from  liability 
to  an  action  for  damages  in  respect  of  injury  created 
by  it  to  property  in  the  neighborhood. 

Mr,  Tipping  now  came  into  chancery, and  j^rayed 
that  they  might  be  enjoined  from  carrying  on  their 
offensive  Avorks.  Here  the  defendants  laid  particular 
stress  on  the  fact  that  the  plaintiff  had  nothing  to  com- 
plain of  because  he  had  moved  into  the  proximity  of 
the  offensive  trade.  But  the  court  held  that  the  injunc- 
tion would  not  be  refused  on  that  ground,  and  the  de- 
fendants were  ordered  to  stop  their  mills. 

Injunctions  to  restrain  nuisances  are  a  constant  subject  of 
equity's  action,  and  will  be  issued  where  plaintiff' s  right  is  clear 
and  the  damage  cannot  be  repaired  by  a  money  judgment.  The 
nuisance,  however,  must  be  imminent;  a  mere  threat  will  not  be 
sufficient.  The  kinds  of  nuisances  which  will  be  thus  enjoined  are 
very  many  —  thus  noises,  offensive  smells,  waste,  pollution  of  air 
and  water,  will  all  be  abated,  in  a  proper  case,  by  the  writ  of  in- 
junction issued  out  of  the  Court  of  Chancery. 


138  EQUITY    CASES    SIMPLLFIED. 


PUBLIC      mjISANCE    ENJOINED    BY  EQUITY. 


HAMILTON  V.  WHITRIDGE. 

[11  Md.  128.] 

Mile.  Margaret  Hamilton  purchased  a  house  on 
Frederick  Street,  in  the  city  of  Baltimore,  had  it  fur- 
nished, and  was  about  to  move  in,  when  she  found 
herself  the  defendant  in  a  chancery  suit.  There  is 
nothing  wrong  in  buying  a  house,  or  in  occupying  it, 
but  Miss  Hamilton's  new  nei<2i:hbors,  havins:  discovered 
that  she  was  a  woman  of  easy  virtue  who  had  kept  a 
house  of  ill-fame  in  another  part  of  the  city,  were 
shocked,  and  asked  the  Court  of  Chancery  to  restrain 
her  from  occupying  the  house  on  Frederick  Street  as 
a  house  of  ill-fame,  on  the  ground  that  the  close 
proximity  to  them  of  such  a  place  would  deprive  them 
of  the  comfortable  enjoyment  of  their  property,  and 
greatly  depreciate  and  lessen  its  value. 

The  injunction  was  granted,  and  Miss  Hamilton  had 
to  locate  her  establishment  in  some  part  of  the  city 
where  the  residents  were  not  so  sensitive. 

What  the  law  calls  nuisances  are  divided  into  two  classes, — 
public  and  private.  A  public  nuisance  is  suppressed  by  indictment 
or  information;  it  is  the  public  that  is  supposed  to  be  aggrieved 
by  what  the  defendant  has  done,  and  individuals,  as  individuals, 
have  nothing  to  do  with  it.  To  this  rule,  the  above  case,  and 
others  like  it,  offer  an  exception,  viz.,  that  when  the  public  nuis- 
ance is  particularly  obnoxious  to  an  individual,  it  is  considered,  so 
far  as  he  is  concerned,  to  be  also  a  private  nuisance,  and  he  may 


EQUITY   CASES    SIMPLIFIED.  139 

apply  for  an  injunction  in  respect  of  it.     Or  he  may  bring  an  action 
at  law  for  damages  if  he  likes  that  method  of  relief  better. 

As  we  have  seen  there  are  many  cases  where  a  man  may  bring  an 
action  and  recover  damages  for  an  injury  which  the  Court  of  Chan- 
cery will  not  enjoin.  The  assistance  of  a  Court  of  Equity  is  only 
granted  to  prevent  irreparable  injury  and  a  multiplication  of 
actions. 


140  EQUITY    CASES    SIMPLIFIED. 


NUISANCE  FROM  NOXIOUS  VAPORS. 


CAMPBELL  V.  SEAMAN. 

[63  N.  Y.  568.] 

Mr.  Campbell  was  the  owner  of  a  dwelling  house 
and  ofrounds  in  the  vicinity  of  a  brick  kiln.  In  his 
grounds  were  ornamental  shade  trees,  grape  vines,  and 
fruit  trees.  Seaman,  who  was  the  owner  of  the  kiln, 
in  manufacturing  the  brick,  mixed  anthracite  coal  dust 
with  the  clay  and  sand,  which,  when  burned,  produced  a 
noxious  gas  w^iich  was  carried  by  the  wind  whenever  the 
burning  was  going  on,  over  to  Campbell's  place.  Be- 
cause these  gases  injured  his  trees  and  vines,  Campbell 
asked  for  an  injunction  which  was  granted.  Seaman 
being  restrained  from  using  the  anthracite  coal  in  the 
way  he  had  been  doing. 

The  law  of  smoke  and  noxious  vapors  is  that  every  person  has  a 
right  to  liave  the  air  diffused  over  his  premises  in  its  natural  state, 
free  from  artificial  impurities.  Of  course  it  is  not  every  little 
impurity  which  another  may  send  into  the  atmosphere  which  will 
be  enjoined,  otherwise  no  one  could  build  a  fire  in  his  stove,  not  to 
speak  of  the  number  of  necessary  industries  which  must  more  or 
less  contribute  to  the  pollution,  in  some  measure,  of  the  air.  But 
nobody  has  a  right  to  contaminate  the  atmosphere  to  such  an 
extent  as  to  render  the  occupancy  of  his  premises  physically 
uncomfortable  to  a  person  of  ordinary  sensibilities,  for  any  of  the 
purposes  to  which  the  owner  may  choose  to  devote  it. 

The  law  as  to  smells  is  similar.  Stenches  of  such  a  character  as 
to  be  offensive  to  the  senses,  or  to  produce  actual  physical  discom- 
fort, or  which  interfere  with  the  comfortable  enjoyment  of  one's 


EQUITY    CASES    SIMPLIFIED.  141 

property,  are  nuisances.  The  question  ia  well  put  by  a  New  Jersey 
Chancellor  in  an  instructive  case  decided  in  18G8.  "It  is  clear," 
says  he,  "  that  everything  that  renders  the  air  a  little  less  pure,  or 
is  to  any  extent  disagreeable,  is  not  necessarily  a  nuisance.  The 
smoke  that  may,  in  certain  conditions  of  the  atmosphere,  descend 
from  a  neighbor's  chimney,  the  fumes  that  may  sometimes  be 
wafted  from  his  kitchen,  though  not  desirable  or  agreeable,  are  not 
a  nuisance.  Between  them  and  the  dense  smoke  from  a  kiln  or 
factory  that  renders  breathing  difficult  or  painful,  and  smells  offen- 
sive to  the  verge  of  nauseating,  there  is  debatable  ground  on  which 
it  may  be  difficult  to  fix  the  exact  point  at  which  the  smoke  or  smell 
becomes  a  nuisance  in  the  eye  of  the  law."  Ross  v.  Butler,  post, 
p.  162.  Therefore,  it  is,  that  no  general  test  can  be  laid  down,  but 
each  case  is  to  be  considered  and  decided  on  the  facts. 

Location,  of  course,  has  much  to  do  with  the  question  whether 
a  certain  manufactory  is  or  is  not  a  nuisance.  A  uuisa,nce,  like  a 
manufactory  emitting  gi-eat  volumes  of  smoke,  is  as  much  a  nui- 
sance if  located  in  a  part  of  a  town  among  the  houses  of  the  poor, 
as  if  in  another  part  among  the  residences  of  the  rich.  "I  find," 
said  the  Chancellor  in  Ross  v.  Butler,  post,  p.  162,  "  no  authority  that 
will  warrant  the  position  that  the  part  of  a  town  which  is  occupied 
by  tradesmen  and  mechanics  for  residences  and  carrying  on  their 
trades  and  business,  and  which  contains  no  elegant  or  costly  dwell- 
ings and  is  not  inhabited  by  the  wealthy  and  luxurious,  is  a  proper 
and  convenient  place  for  carrying  on  business  which  renders  the 
dwellings  there  uncomfortable  to  the  owners  and  their  families  by 
offensive  smells,  smoke,  cinders  or  intolerable  noises,  even  if  the 
inliabitants  are  themselves  artizans  who  work  at  trades  occasioning 
some  degree  of  noise,  smoke  and  cinders.  Some  parts  of  a  town 
may,  by  lapse  of  time  or  prescription,  by  the  continuance  of  a 
number  of  factories  long  enough  to  have  a  right  as  against  every 
one,  be  so  dedicated  to  smells,  smoke,  noise  and  dust,  that  an 
additional  factory  which  adds  a  little  to  the  common  evil  would 
not  be  considered  at  law  a  nuisance  or  be  restrained  in  equity. 
There  is  no  principle  in  law  or  the  reasons  on  which  its  rules  are 
founded  which  should  give  protection  to  the  large  comforts  and 
enjoyments  with  which  the  wealthy  and  luxurious  are  surrounded, 
and  fail  to  secure  to  the  artizan  and  laborer  and  their  families  the 
fewer  and  more  restricted  comforts  which  they  enjoy." 

Because  a  man  does  not  live  in  the  house  which  a  nuisance  is 
alleged  to  injure,  is  no  reason  why  it  should  not  be  abated  at  his 
suit.    All  that  is  necessary  is  that  he  should  own  the  house,  and 


142  EQUITY    CASES    SIMPLIFIED. 

that  the  nuisance  diminishes  its  value  by  preventing  people  from 
occupying  or  buying  It.    Peck  v.  Edler,  3  Sandf.  127. 

If  A.,  B.,  C,  D.,  and  any  number  more,  are  affected  by  a  nuisance 
in  their  neighborhood,  they  may  all  join  in  a  suit  to  restrain  its 
continuance.    Peck  v.  Elder,  3  Sandf.  127. 


EQUITY    CASES    SIMPLIFIED.  143 


NUISANCE  FROM  NOISE  —  BELLS. 


SOLTAU  V.  DE   HELD. 

[2  Sim.  (N.  8.)  133.]     • 

The  sound  of  church  bells  is  ofteu  a  very  pleasant  one 
to  hear  at  a  distance.  But  like  some  views,  it  is  dis- 
tance which  generally  lends  enchantment  to  the  sound  ; 
for  it  may  be  questioned  whether  the  bell-ringers,  them- 
selves, experience  any  particular  sensation  of  pleasure 
from  the  melodies  they  produce.  Over  thirty  years  ago, 
Mr.  Soltau  was  a  steady-going  family  man,  residing  in  a 
semi-detached  house  at  a  place  called  Clapham.  The 
adjoining  house  was,  from  1817  to  1848,  occupied  as  a 
private  house,  but  in  the  latter  year  it  was  bought  by  a 
religious  order  of  Roman  Catholics,  calling  themselves 
'*  The  Redemptionist  Fathers,"  and  those  gentlemen 
converted  the  house  into  a  chapel,  and  appointed 
De  Held,  a  Roman  Catholic  priest,  to  officiate  therein. 
One  of  the  first  acts  of  Mr.  De  Held,  on  entering  on 
the  scene  of  his  ministrations,  was  to  set  up  a  harsh 
and  discordant  bell,  and  to  ring  it  with  pious  unscrupu- 
lousness  at  the  most  unearthly  and  unnecessary  times. 
As  Soltau,  speaking  for  himself  and  the  neighbors  gen- 
erally, said  plainly:  "The  practice  we  complain  of 
is  offensive  alike  to  our  ears  and  feelings  ;  disturbs  the 
quiet  and  comfort  of  our  houses  ;  molests  us  in  our 
engagements,  whether  of  business,  amusement  or  devo- 
tion ;  and  is  peculiarly  injurious  and  distressing  when 


144  EQUITY    CASES    SIMPLIFIED. 

members  of  our  houseliokl  hiippeii  to  be  invalids  ;  it 
tends  also  to  depreciate  the  value  of  our  dwelling 
houses."  This  was  a  complaint  emanating,  not  from 
the  general  body  of  Claphamites,  who,  being  at  a 
grreater  distance,  were  more  or  less  indifferent  to  the 
matter,  but  from  those  who  were  the  greatest  sufferers, 
the  immediate  neighbors,  and  it  was  on  this  ground  of 
special  annoyance  that  Mr.  Soltau  was  considered 
entitled  to  be  heard.  Mr.  Soltau  made  out  such  a 
good  case  that  the  Court  of  Chancery  enjoined  the 
"Fathers"  from  ringing  their  bells  so  as  to  disturb 
and  annoy  him  and  his  family. 

About  five  years  ago,  a  chime  of  church  bells  in  Philadelphia  — 
the  bells  of  St.  Marks'  Church  —  were  restrained  on  account  of  its 
disturbing  the  neighborhood.  The  parties  differed  materially  about 
the  facts.  The  plaintiff  said  :  "  That  the  noise  of  such  ringing  was 
harsh,  loud,  high,  sharp,  clanging,  discordant,  producing  a  nuisance 
which  disturbed  rest  and  sleep,  distracted  the  mind  from  any  seri- 
ous employment,  interfered  with  conversation  in  the  immediate 
neighborhood,  lessened  or  destroyed  social  and  domestic  inter- 
course, peace,  and  happiness ;  and  in  particular,  was  detrimental 
to  the  health  and  comfort  of  invalids,  children,  and  persons  whose 
nervous  systems  are  delicately  organized;  that  the  effect  was  not 
limited  to  the  periods  of  actual  ringing,  but  the  anticipation  of  its 
beginning  produced  a  nervousness  and  excitement  which  to  all  is 
painful,  and  to  some  intolerable."  While  the  defendant  insisted 
"that  the  chiming  complained  of  is  neither  a  public  nor  private 
nuisance,  being  in  truth  and  fact  musical,  mellow,  soft,  well 
pitched,  sweet,  and  harmonious,  and  of  such  an  agreeable  charac- 
ter that  it  has  grown  to  constitute  one  of  the  chief  attractions  of 
the  neighborhood,  and  has  materially  added  to,  rather  than 
detracted  from,  the  enjoyment  of  social  and  domestic  life  among 
those  residing  in  the  vicinity."  Also,  "  That  bell-ringing  is  part  of 
the  ordinary  and  usual  sounds  of  city  life,  the  chiming  complained 
of  being  far  less  calculated  to  disturb  ordinary  citizens  than  the 
customary  bell-ringing  in  factories,  schools,  and  some  other 
churches,  or  the  noises  of  cars,  wagons,  steam  whistles,  and  other 
sounds  incident  to  a  city;  and  that  even  if  they  produced  on  some 


EQUITY    CASES    SIMPLIFIED.  145 

persons,  when  first  heard,  a  temporary  annoyance,  the  hearers 
■would  soon  get  so  accustomed  to  the  sound  that  they  would  not 
notice  it,  except  where  an  imaginary  or  trifling  annoyance  is  fos- 
tered by  wilful  prejudice  or  heightened  by  nervous  excitability." 
The  court  observed:  "It  is  alleged,  on  the  other  hand,  by  the 
defendants,  that  beH-ringing  and  the  chiming  of  bells  date  from  a 
remote  period  in  the  Christian  Church,  that  they  have  been  received 
with  general  favor  and  acceptance,  and  that  it  would  be  difficult  to 
find  any  great  poet,  from  Dante  down  to  our  own  times,  whose 
verse  does  not  bear  witness  to  this  truth :  that  the  sounds  so  much 
complained  of  are  not  a  mere  accidental  accompaniment,  but  have 
from  associations  become  an  integral  part  of  the  celebration  of  the 
Sunday,  which  brings  an  opportunity  for  rest  to  all ;  and  that  the 
court  should  be  slow  to  believe  that  a  custom,  hallowed  by  the 
observance  and  sanctioned  by  the  assent  of  successive  generations 
of  worshipers,  can  be  injurious;  and  that  in  fact,  in  the  present 
case,  as  will  be  apparent  on  examining  the  testimony,  if  some  per- 
sons inveigh  against  the  bells  which  give  occasion  for  this  suit, 
other  and  not  less  numerous  voices  are  raised  in  their  behalf.  The 
court  is  consequently  asked  to  infer,  that  if  the  sufferings  for 
which  the  bill  seeks  relief  are  not  imaginary,  they  are  the  inevit- 
able offspring  or  accompaniment  of  nervous  disease,  although  a 
morbid  or  excited  fancy  attributes  them  to  the  peals  Issuing  from 
the  tower  of  defendants'  church."  Eminent  physicians,  however, 
testified  to  the  deleterious  effects  of  the  chiming.  It  appeared, 
too,  that  the  bells  were  rung  four  times  on  Sunday,  and  twice  on 
every  week-day,  and  on  festivals  and  Saints'  days,  from  ten  minutes 
to  half  an  hour  at  a  time,  averaging  from  seventy-five  to  ninety- 
four  strokes  a  minute.  This  was  deemed  too  much  of  a  good  thing 
and  was  enjoined.  Harrison  v.  St.  Marks'  Church,  12  Phila.  259. 
I  take  the  report  of  this  case  from  Mr.  Irving  Browne's  very  enter- 
taining "  Humorous  Phases  of  the  Law." 

10 


146  EQUITY    CASES    SIMPLIFIED. 


NUISANCE  FROM  NOISE  —  IMPROPER    USE. 


BRODER    V.    SAILLARD. 

[2  Ch.  Div.  692.] 

Mr.  Saillard,  as  the  judge  remarked,  found  himself 
in  a  very  unfortunate  position.  He  had  rented  a  house 
with  a  stable  adjoining  at  a  high  rent  and  on  the  usual 
terms.  He  had  occupied  the  house  as  all  people  do  who 
have  houses,  and  he  had  put  his  horses  in  the  stable  as 
all  people  do  who  have  stables,  when  suddenly,  very 
much  to  his  annoyance,  he  found  himself  the  defendant 
in  a  chancery  suit.  The  tenant  of  a  house  which  was 
close  to  the  stable  had  notified  the  landlord  that  the 
horses  of  Mr.  Saillard  made  such  a  noise  that  he  would 
have  to  leave  ;  and  the  landlord,  in  order  not  to  lose  a 
good  tenant,  asked  the  Court  of  Chancery  to  make 
Mr.  Saillard  move  his  horses  away. 

"  It  is  very  hard,"  said  the  judge,  "on  the  defendant, 
who  is  a  gentleman,  with  these  horses  in  his  stable,  and 
whose  horses  do  not  appear  to  make  more  than  the 
ordinary  noise  that  horses  do,  if  he  is  not  to  be  allowed 
to  keep  his  horses  in  his  stable.  On  the  other  hand, 
it  is  very  hard  on  the  plaintiffs  if  they  cannot  sleep 
at  night,  and  cannot  enjoy  their  house  because  the 
noise  from  the  stables  is  so  great  as  seriously  to  inter- 
fere with  their  rest  and  comfort.  The  question  is  on 
which  side  the  law  inclines." 

The  judge  came  to  the  conclusion  that  the  law 
inclined  in  favor  of  the  plaintiff,  and  Mr.  Saillard 's 


EQUITY    CASES    SIMPLIFIED.   '  147 

horses  had  to  go.  "If  a  stable  is  built,"  said  he, 
"not  as  stables  usually  are,  at  some  distance  from 
dwelling  houses,  but  next  to  the  wall  of  the  plaintiff's 
dwelling  house,  in  such  a  position  that  the  noise  would 
actually  prevent  the  neighbors  sleeping,  and  would 
frighten  them  out  of  their  sleep,  and  would  prevent 
their  ordinary  and  comfortable  enjoyment  of  their 
dwelling  house,  all  I  can  say  is,  that  is  not  a  proper 
place  to  keep  horses,  although  the  horses  may  be  ordi- 
narily quiet." 

The  test  in  all  these"  cases,  to  determine  whether  the  noise  will 
be  stopped  by  injunction,  is  not  whether  the  party  is  using  his 
property  for  lawful  and  proper  purposes,  but  is  whether  the  use 
of  the  property  is  reasonable,  in  view  of  the  right  of  the  neighbors 
to  peace  and  quietness.  Said  Jessel,  M.  R.,  in  the  above  case: 
"  I  take  it  the  law  is  this :  that  a  man  is  entitled  to  the  comfortable 
enjoyment  of  his  dwelling  house.  If  his  neighbor  makes  such  a 
noise  as  to  interfere  with  the  ordinary  use  and  enjoyment  of  his 
dwelling  house,  so  as  to  cause  serious  annoyance  and  disturbance, 
the  occupier  of  the  dwelling  house  is  entitled  to  be  protected  from 
it.  It  is  no  answer  to  say  that  the  defendant  is  only  making  a 
reasonable  use  of  his  property,  because  there  are  many  trades  and 
many  occupations  which  are  not  only  reasonable  but  necessary  to 
be  followed,  and  which  still  cannot  be  allowed  to  be  followed  in  the 
proximity  of  dwelling  houses  so  as  to  interfere  with  the  comfort 
of  their  inhabitants.  I  suppose  a  blacksmith's  trade  is  as  neces- 
sary as  most  trades  in  this  kingdom,  or  I  might  take  instances  of 
many  noisy  and  offensive  trades,  some  of  which  are  absolutely 
necessary,  and  some  of  which  no  doubt  may  not  only  be  reason- 
ably followed,  but  to  which  it  is  absolutely  and  indispensably 
necessary  for  the  welfare  of  mankind  that  some  houses  and  some 
pieces  of  land  should  be  devoted;  therefore  I  think  that  (i.e.,  that 
plaintiff  is  making  a  lawful  use  of  his  property)  is  not  the  test." 

In  a  somewhat  earlier  case  Chancellor  Selborxe  laid  down  the 
same  test  thus :  "  In  a  case  of  nuisance  of  this  character  there  are 
always  two  things  to  be  considered,  — the  right  of  the  plaintiff  and 
the  right  of  the  defendant.  If  the  honses  adjoining  each  other 
are  so  built  that  it  is  manifest  that  each  adjoining  inhabitant  was 
intended  to  enjoy  his  own  property  for  the  ordinary  purposes  for 


148  EQUITY    CASES    SIMPLIFIED. 

which  it  aud  all  the  different  parts  of  it  were  constructed,  then  so 
long  as  the  house  is  so  used  there  is  nothing  that  can  be  regarded 
in  law  as  a  nuisance  which  the  other  party  has  a  right  to  prevent. 
But,  on  the  other  hand,  if  either  party  turns  his  house  or  any 
portion  of  it  to  unusual  purposes,  in  such  a  manner  as  to  produce 
substantial  injury  to  his  neighbor,  it  appears  to  me  that  this  is  not, 
according  to  principle,  a  reasonable  use  of  his  property,  and  his 
neighbor,  showing  substantial  injury,  is  entitled  to  protection." 
Ball  V.  Ray,  L.  R.  8  Ch.  App.  467. 


EQUITY    CASES    SIMPLIFIED.  149 


NUISANCE  FROM  NOISE— PROPER    USE. 


POOL    V.    COLEMAN. 

[8  Daly,  113.] 

'«  Drat  that  baby,"  said  Mr.  Pool.  Now,  Mr.  Pool 
had  very  good  reasons  for  not  admiring  that  particuhir 
infant  to  which  he  referred.  He  lived  on  the  fourth 
floor  of  a  French  flat,  on. Madison  Avenue,  New  York 
City.  The  man  up  stairs  was  Mr.  Coleman  ;  and  the 
mail  up  stairs,  unfortunately  for  Mr.  Pool's  peace  of 
mind,  had  a  baby  —  a  cross  baby,  at  that.  The  baby 
was  at  that  infantile  period  called  teething,  and  refused 
to  be  quiet,  either  day  or  night,  except  while  it  was 
being  drawn  across  the  room  in  a  baby  carriage.  The 
flats,  being  put  up  to  rent,  were^  like  the  houses  in 
Pentonville,  described  by  Thackeray,  —  "where  you 
hear  rather  better  outside  the  room  than  in  ;  "  so  the 
rumbling  of  the  carriage  overhead  was  very  clearly 
heard  below,  and  what  put  the  baljy  to  sleep  kept 
Mr.  Pool  awake.  Mr.  Pool  protested,  but  it  was 
of  no  use,  so  he  asked  the  court  to  abolish  the  mid- 
night rides  of  the    enfant  terrible. 

The  terrible  infant,  however,  triumphed,  for  the 
court  would  not  even  order  him  to  be  rocked  in  a 
cradle,  instead  of  drawn  round  in  a  carriage.  The 
judgment  of  the  court  contains  such  an  interesting 
discussion  of  the   questions   which   the    case   raised, 


150  EQUITY    CASES    SIMrLIFIED. 

that   a  lengthy  extract   from    it    may   not   be   out  of 
phice  :  — 

"  Certain  noises,"  said  the  judge  who  delivered  the 
opinion,  "like  the  noise  of  a  pianoforte  iu  a  neigh- 
bor's house,  or  a  noise  of  a  neighbor's  children  in  a 
nursery,  we  must  always  expect,  and  must  to  a  con- 
siderable extent  put  up  with.  In  the  cit}^  of  New 
York  various  causes  have  combined  to  brins:  about 
the  crowding  of  numbers  of  people  into  one  house. 
Poverty  forces  the  poor  into  tenement  houses,  and 
fashion  lures  the  well-to-do  into  French  flats.  But 
there  can  be  but  one  law  for  the  two  classes  of  dwell- 
ings ;  or,  perhaps,  I  might  say  for  both  varieties  of  that 
species  of  abode  called  apartment  houses.  The  re- 
striction of  the  use  of  a  baby  carriage  in  a  French 
flat  would  logically  be  followed  by  the  prevention 
of  the  use  of  sewing  machines  in  tenement  houses. 
Certainly,  the  noise  of  an  ordinary  sewing  machine 
must  be  quite  as  offensive  as  that  of  a  parlor  carriage, 
and  the  day  laborer  needs  rest  and  sleep  quite  as 
much  as  the  dweller  in  a  Frenoh  flat ;  and  yet  no 
man  would  approve  the  enjoining  the  seamstress  from 
stealing  a  few  hours  from  iiigiit  for  the  purposes 
of  her  trade.  It  is  true  that  no  laborer  is  likely  to 
complain  of  any  disturbance  of  his  sleep,  for  '  weari- 
ness can  snore  upon  the  flint,  when  restive  sloth  finds 
the  down  pillow  hard  ;  '  but  that  consideration  does  not 
change  the  principle.  Where  a  man  makes  himself 
one  of  a  hundred  gathered  under  a  roof,  and  selects 
for  his  home  a  house  so  flimsily  built  that  the  tread 
of  a  woman's  bare  foot  upon  a  heavily  carpeted  floor 
makes  a  vibration  to  be  complained  of  by  those  living 
on  the  floor  below,  he  cannot   expect  the  immunity 


EQUITY    CASES    SIMPLIFIED.  151 

from  noise  and  disturbance  whicli  he  would  enjoy  in  a 
house  occupied  by  his  own  ftimily  alone,  nor  can  he 
restrain  other  occupants  from  any  use  of  their  own 
apartments  consistent  with  good  neighborship,  and 
with  a  reasonable  regard  for  the  comfort  of  others. 
If  the  rocking  of  a  cradle,  the  wheeling  of  a  carriage, 
the  whirring  of  a  sewing  machine,  or  the  discord  of 
ill-played  music,  disturb  the  inmates  of  the  apartment 
house,  no  relief  by  injunction  can  be  obtained,  unless 
the  proof  be  clear  that  the  noise  is  unreasonable,  and 
made  without  due  regard  to  the  rights  and  comforts  of 
the  occupants.  The  situation  of  the  dwellers  in  apart- 
ments, whilst  it  has  its  advantages,  must  be  in  some 
respects  less  agreeable  than  that  of  those  who  occupy 
a  whole  house.  They  cannot  expect  the  same  quiet 
and  repose.  A  man  who  liv^es  in  a  hotel  must  not  be 
surprised  if  aroused  from  sleep  by  the  heavy  foot  of 
some  guest  passing  by  his  door  at  an  unseasonable 
hour.  Nor  ought  the  plaintift'  to  have  been  surprised 
by  the-  use  of  any  ordinary  means  which  the  defendant 
might  employ  to  lull  his  sick  child  to  sleep.  No  man 
has  a  right  to  such  an  immunity  from  noise  that  his 
neio'hbor  cannot  stir  in  his  own  room.  There  is  noth- 
inof  in  the  affidavits  to  lead  me  to  the  conclusion  that 
the  defendant  in  having  this  carriage  instead  of  a 
cradle,  made  a  use  of  his  apartments,  which  in  view 
of  the  plaintiff's  right  to  quiet  and  repose,  was  unreas- 
onable. It  is  probal)le  that  a  cradle  swinging  upon 
pivots,  set  in  ordinary  standards,  would  have  answered 
the  purpose  as  well  as  the  carriage,  and  as  it  would 
make  no  noise,  good  neighborship  might  suggest  the 
use  of  it ;  as  a  matter  of  law,  however,  if  the  defend- 
ant himself  were  taken  sick,  and  obliged  to  walk  the 


152  EQUITY    CASES    SIMPLIFIED. 

floor  all  night  through  pain,  the  phiintifF  would  have 
no  right  to  insist  that  he  should  put  on  India  rubbers. 
As  has  been  said,  each  case  must  stand  by  itself,  and 
where  people  indulge  their  inclination  to  be  gregarious, 
they  must  not  expect  the  quiet  that  belongs  to  soli- 
tude." 


EQUITY    CASES    SIMPLIFIED.  153 


NO  TRADE  A  NUISANCE  PER  SE. 


CATLIN  V.  VAL,ENTINE. 

['J  Paige  Ch.  575. J 

III  the  very  heart  of  a  popuh)us  portion  of  the  great 
city  of  New  York,  the  defendant  was  erecting  a  build- 
ing to  use  as  a  shuighter-house,  when  the  adjacent 
property  owners  went  into  court  to  prevent  him. 
Here  the  defendant  admitted  that  such  was  his  purpose, 
but  denied  that  it  was  a  nuisance. 

The  court  permitted  him  to  go  on  with  the  building, 
but  restrained  him  from  using  or  permitting  it  to  be 
used  as  a  slaughter-house,  Mintil  the  final  hearing  of 
the  case,  when  it  would  hear  evidence  as  to  whether 
the  slaughtering  of  cattle  at  the  place  proposed  was 
not  offensive  and  injurious  to  the  neighboring  inhabi- 
tants. 

The  Chancellor  said  :  "  The  situation  of  the  defend- 
ant's building,  in  reference  to  the  dwellings  of  the 
complainants,  would,  prima  facie,  render  the  occupa- 
tion of  such  building,  for  the  purpose  of  slaughtering 
cattle  there  a  nuisance ;  and  as  there  is  no  real 
necessity  that  such  an  offensive  business  should  be 
carried  on  in  this  part  of  the  city,  where  many  valu- 
able dwelling  houses  of  the  best  kind  are  already 
erected  and  are  continuing  to  be  built,  the  Vice- 
Chancellor  was  right  in  retaining  the  injunction  until 


154  EQUITY    CASES    SIMPLIFIED. 

final  hearing.  The  answer  of  the  defendant  that  a 
slaughter-house  would  not  be  ofi'ensive  to  the  plaintiff 
is  matter  of  opinion  only.  " 

No  trade  can  be  a  nuisance,  perse,  because  it  Is  obvious  that  there 
may  be,  from  time  to  time,  improvements  discovered  that  may 
make  something  formerly  offensive  wholly  inoffensive,  and  it  is  no 
reason,  because  a  certain  kind  of  manufacturing  establishment,  or 
a  certain  use  of  property,  has  been  in  a  previous  case  decided  to 
be  a  nuisance  by  a  court  hearing  the  evidence  as  to  the  manner  it 
was  conducted,  and  its  results,  that,  therefore,  every  manufactory 
or  use  of  property  of  the  same  kind,  is  to  be  taken  to  be  a  nuisance 
per  se,  and  without  hearing  any  evidence.  Formerly,  the  rule  was 
different,  and  the  courts  used  to  hold  that  those,  trades  and  uses 
of  property  which  by  experience  had  been  demonstrated  to  be  of  a 
noxious  or  hurtful  character  were  nuisances,  per  se.  Acting  on  this 
principle  they  have  enjoined  such  things  as  a  blacksmith  forge,  a 
beer  house,  a  glass  house,  a  swine  sty,  a  caudle  factory,  a  tauucry, 
a  privy,  etc.  But  now,  thanks  to  modern  progress,  the  courts  have 
changed  all  this,  and  as  said  by  a  Scotch  judge :  "  Science  has  gone 
far  to  prevent  many  things  from  being  a  nuisance  that  were  formerly 
of  that  description.  It  is  not,  therefore,  very  easy  to  determine  be- 
forehand, whether  or  not  any  given  thing  shall  prove  a  nuisance." 
Arnot  V.  Brown,  1  Macq.  229. 

But  because  there  are  certain  trades  and  uses  of  property  which 
have  been  demonstrated  to  be  productive  of  ill  results  as  a  general 
rule,  the  court  on  application  to  abate  such  an  alleged  nuisance, 
will  treat  it  prima  facie  as  such,  and  will  enjoin  it  until  all  the  evi- 
dence on  the  subject  has  been  produced  by  the  party  who  is  com- 
plained against.  On  this  ground  the  temporary  injunction  in  Catlin 
V.  Valentine  was  granted. 

A  good  illustration  of  this  rule  arose  in  St.  Louis,  in  1879.  One 
Russell,  in  an  aristocratic  part  of  the  city  of  St.  Louis,  commenced 
erecting  a  building  to  be  used  as  a  livery  stable,  and  the  residents 
made  a  great  effort  to  have  him  stopped.  But  Judge  Dillon 
refused  to  stop  him,  telling  the  complainants  that  a  livery  stable  in 
the  residence  portion  of  a  city  is  not,  as  a  matter  of  law,  a  nuis- 
ance to  the  improved  property  adjoining  or  near  it,  or  to  the  neigh- 
bors. But  at  the  same  time  he  said  to  Russell:  "  You  may  proceed 
to  finish  your  building,  and  use  it  for  a  livery  stable.  But  if  it 
shall,  hereafter,  be  found  by  a  jury  or  court  that  your  stable  does 
interfere  with  the  comfortable  enjoyment  of  the  neighboring  prop- 


EQUITY   CASES    SIMPLIFIED.  155 

erty,  you  cannot  complain  if  you  are  perpetually  enjoined  from  the 
further  use  of  it  for  the  purpose  for  which  it  was  designed."  Flint 
V.  Russell,  8  Cent.  L.  J.  68. 


156  EQUITY   CASES    SIMPLIFIED. 


NUISANCE  MAY  BE  DISAGREEABLE  WITHOUT 
BEING  HURTFUL. 


WATiTER  V.  SEL.FE. 

[4  DeG.  &  Sm.  318.] 

Near  the  residence  of  Mr.  Walter,  there  was  a  brick- 
yard, and  in  the  process  of  burning  bricks  there  came 
from  the  brick-yard  vapors  and  floating  substances 
which  were  very  disagreeable  to  Mr.  Walter,  so  disa- 
greeable that  he  asked  the  Court  of  Chancery  to  re- 
strain them.  The  evidence  showed  that  these  vapors 
were  very  obnoxious  to  the  inmates  of  Mr.  Walter's 
house,  but  it  did  not  appear  that  they  were  hurtful  in 
their  effect,  or  that  they  produced  any  tangible  injury 
to  his  property. 

The  question,  therefore,  arose  whether  a  smell  that  is 
simply  disagreeable  to  ordinary  persons,  but  not  hurt- 
ful, is  such  an  annoyance  to  ordinary  persons  as  to 
make  it  a  nuisance.  The  court  said  it  was.  <'The 
question,"  arises  said  the  Vice-Chancellor,  "whether 
this  is  a  nuisance  to  the  plaintiff  or  occupier  of  his 
house,  a  question  which  must,  I  think,  be  answered  in 
the  affirmative,  though  whether  to  the  extent  of  being 
noxious  to  human  health,  to  animal  health  in  any  sense, 
or  to  vegetable  health,  I  do  not  say  or  deem  it  neces- 
sary to  intimate  an  opinion.  *  *  *  j  r^^^^  Qf  opin- 
ion that  this  point  is  against  the  defendant.  As' far  as 
the  human  frame  in  an  averajre  state  of  health  is  con- 


EQUITY    CASES    SIMPLIFIED.  157 

cerned  mere  uusiilubrily,  mere  unwholesomeiiess,  may 
possibly,  as  I  have  said,  be  out  of  the  case,  but  the 
same  may  perhaps  be  said  of  styed  hogs,  melting  tal- 
low, and  other  such  inventions  less  sweet  than  useful. 
That  does  not  decide  the  dispute,  a  smell  may  be  sick- 
ening though  not  in  a  medical  sense.  Ingredients  may 
I  believe  be  mixed  with  air  of  such  a  nature  as  to  affect 
the  palate  disagreeably  and  ofiensively  though  not 
unwholesomely.  A  man's  body  may  be  in  a  state  of 
chronic  discomfort,  still  retaining  its  health,  and  per- 
haps even  suffer  more  annoyance  from  nauseous  or 
fetid  air  from  being  in  a  hale  condition."  And  the 
brick-maker  had  to  close  his  yard. 

A  chancelloi',  as  has  been  well  said,  does  not  wait  till  noisome 
trades  and  unwholesome  gases  kill  somebody  before  he  proceeds  to 
restrain.  Dennis  v.  Eckhardt,  3  Grant's  Cas.  392.  Noxiou^  vapors 
need  not  be  hurtful  or  unwholesome  to  be  nuisances ;  it  is  sufficient 
if  they  are  so  offensive  as  to  produce  such  annoyance,  inconven- 
ience or  discomfort  as  to  impair  the  comfortable  enjoyment  of 
property  by  persons  of  ordinary  sensibilities. 

And  it  is  laid  down  that  the  fact  that  the  person  complaining  is 
in  a  delicate  state  of  health,  and  therefore  more  susceptible  to 
injury  from  the  nuisance,  or  that  the  property  injured  is  of  a  pecu- 
liarly delicate  character,  is  no  defence.  An  English  case  which 
arose  some  years  ago  presented  this  point  very  well.  Mr.  Cook 
manufactured  colored  mats.  These  mats  were  made  from  cocoa- 
nut  fibre,  dipped  in  dyes,  and  then  hung  out  in  the  air  to  dry.  His 
neighbor,  Forbes,  carried  on  the  manufacture  of  chemicals,  and 
when  the  wind  was  in  the  east  a  kind  of  gas  from  Forbes' s  chim- 
neys was  blown  into  Cook's  yard,  which  took  the  color  out  of  his 
mats  so  that  he  was  obliged  to  dye  them  over  again.  When  Cook 
complained,  Forbes  replied  that  the  gas  from  his  works  hurt  no- 
body else,  and  that  Cook  ought  to  keep  his  mats  inside.  But  the 
Chancellor  did  not  so  reason.  "  It  appears  to  me  quite  plain," 
said  he,  "  that  a  person  has  a  right  to  carry  on  upon  his  own  prop- 
erty a  manufacturing  process  in  which  he  uses  chloride  of  tin  or 
any  sort  of  metallic  dye,  and  that  his  neighbor  is  not  at  liberty  to 
pour  in  gas  which  will  interfere  with  his  manufacture.     If  it  can 


158  EQUITY   CASES   SIMPLIFIED. 

be  traced  to  the  neighbor,  theu,  I  apprehend,  he  will  be  entitled  to 
come  here  and  ask  relief."     Cook  v.  Forbes,  5  Eq.  Cas.  166. 

The  student  should  carefully  note  this  distinction  between  inju- 
ries to  property  and  personal  inconvenience,  —  viz.,  that  the  court 
will  interfere  much  more  readily  in  the  former  class  of  cases  than  in 
the  latter.  If  the  nuisance  injures  property  to  any  extent,  that  is 
generally  enough,  while  it  is  not  every  little  inconvenience  to  per- 
sonal comfort  which  will  obtain  the  aid  of  a  Court  of  Equity  for 
the  purpose  of  restraining  the  obnoxious  cause. 


EQUITY    CASES    SIMPLIFIED,  159 


COMING    TO  NUISANCE. 


BRADY    V.  WEEKS. 

[3  Barb.  15(].] 

Mr.  Brady  and  other  owners  and  residents  of  dwell- 
ings on  Twelfth  Street,  New  York  city,  filed  a  bill  in 
equity  asking  that  Weeks  should  be  restrained  from 
nsino-  a  buildino;  near  them  as  a  slau<2:hter-house.  In 
answer,  Weeks  said,  first,  that  his  slaughter-house  did 
not  cause  any  smell  that  any  one  could  ol)ject  to  ;  and, 
secondly,  that  he  had  occupied  the  building  in  this  way 
for  about  fourteen  years,  Avhile  the  phuntiffs  had  only 
within  the  last  three  or  four  years  erected  their  houses 
and  come  to  live  there. 

But  the  court  granted  the  injunction.  "  To  consti- 
tute a  nuisance,"  they  said,  "  it  is  not  necessary  that 
the  noxious  trade  or  business  should  endanger  the 
health  of  the  neighborhood.  It  is  sufficient  if  it  pro- 
duces that  which  is  offensive  to  the  senses,  and  which 
renders  the  enjoyment  of  life  and  property  uncom- 
fortable. The  slaughter-house  in  question  is  to  be 
regarded  as  prima  facie  a  nuisance  to  the  plaintifl's, 
notwithstanding  the  qualified  denial  of  the  defendant 
that  it  is  not  a  imisance."  Nor  did  Mr.  Weeks  suc- 
ceed in  his  second  plea.  "  When  the  slaughter-house 
was  erected,"  the  court  continued,  "  it  was  remote 
from  the  thickly  settled  part  of  the  city ;  but  it 
seems   that   the    city  has    now  grown    up  to    it,  and 


3-60  EQUITY    CASES    SIMPLIFIED. 

that  the  necessities  of  the  cor])orati()ii  require  the 
occupation  of  the  lots  in  the  immediate  vicinity  for 
dwellings.  When  it  was  erected  it  incommoded  no 
one,  but  now  it  interferes  with  the  enjoyment  of  life 
and  property,  and  tends  to  deprive  the  plaintiffs  of 
the  use  and  benefit  of  their  dwellings.  There  can  be 
no  real  necessity  for  conducting  such  an  offensive  busi- 
ness as  slaughtering  cattle  in  this  part  of  the  city, 
which  is  now  occupied  by  valuable  and  costly  dwell- 
ings. As  the  city  extends,  such  nuisances  should  be 
removed  to  the  vacant  ground  beyond  the  immediate 
neighborhood  of  the  residences  of  the  citizens.  This, 
13ul)lic  policy  as  well  as  the  health  and  comfort  of  the 
population  of  the  city  demands  ;  and  it  seems  that 
whenever  any  offensive  trade  becomes  an  injnrious 
nuisance  to  any  person,  such  person  has  a  remedy  by 
an  action  on  the  case  for  damages,  or  by  writ  of  nui- 
sance to  have  the  nuisance  abated,  upon  the  principle 
that  every  continuance  thereof  is  a  new  or  fresh  nui- 
sance." 


SMITH    V.    PHILLIPS. 

[8  Phila.  10.] 

Smith  was  the  tenant  of  a  fruit  farm,  out  of  which 
he  made  his  living,  and  he  was,  therefore,  not  at  all 
pleased  to  see,  one  day,  a  l)uilding  next  to  where  his 
fruit  trees  were  in  blossom  turned  into  a  chemical 
factory.  When  his  lease  expired,  instead  of  Smith 
going  somewhere  else  to  carry  on  his  business,  he  got 
a  renewal,  and  then  set  to  work  to  have  the  court  stop 


EQUITY    CASES    SIMPLIFIED.  1()1 

the  cheiniccal  factory,  which  it  was  clear  was  injuring 
his  trees  and  fruit  very  much. 

The  chemical  manufacturer  contended  that  as  Smith 
knew  by  experience  the  effect  of  the  chemicals  on  the 
adjoining  land,  he  hud  voluntarily  placed  himself  in  a 
position  to  be  injured  by  renting  the  farm  again,  and 
that  he  ought,  therefore,  to  have  no  relief. 

But  the  court  did  not  think  much  of  this  plea,  for 
it  held  that  the  fact  that  Smith  would  not  be  driven 
away  from  the  premises  was  no  defence. 

St.  Helen's  Mills  Co.  v.  Tipping,  and  Brady  v.  Weeks,  decreed, 
among  other  things,  that  the  fact  that  a  person  comes  to  the  nui- 
sance voluntarily,  instead  of  the  nuisance  coming  to  him,  does  not 
deprive  him  of  his  right  to  complain.  Smith  v.  Phillips  is  an 
extension  of  this  principle,  viz. :  that  the  fact  that  the  complainant 
continues  to  rent  the  property  at  the  same  rent  after  the  nuisance 
is  established  is  no  bar. 

11 


102  EQUITY    CASES    SIMPLIFIED. 


NUISANCE  —  LENGTH  OF   TIME  IMMATERIAL. 


ROSS   v.  BUTLER. 

[19  N.  J.  (Eq.)  294.] 

Some  of  the  residents  of  a  New  Jersey  town  com- 
plained of  the  smoke  which  a  pottery  near  them 
emitted.  It  appeared  that  the  pottery  did  throw  ont 
a  most  extraordinary  lot  of  smoke ;  and,  that  the 
smoke  being  of  the  blackest  and  thickest  kind,  was 
very  offensive  to  the  neighborhood ;  l>ut  as  it  also 
appeared  that  it  only  occnrred  twice  each  month,  for 
twelve  honrs  at  a  time,  the  defendant  tried  to  defend 
himself  on  this  ground. 

But  the  court  held  that  time  was  not  an  element  to 
be  considered.  "  I  am  not  aware,"  said  the  Chancel- 
lor, "  of  any  authority  or  established  principle  hold- 
ing that  a  clear  nnmistakable  nuisance,  which  it  is 
intended  to  commit  periodically  will  be  permitted, 
because  it  does  not  exist  the  greater  portion  of  ,the 
time,  but  only  for  a  small  portion  of  it.  The  court 
will  not  determine  that  a  family  shall  have  their 
dwelling  house  made  uncomfortable  to  live  in  for 
twelve  hours,  once  in  two  weeks,  or  that  they  shall 
protect  themselves  by  -closing  the  house  tightly,  and 
remaining  in-doors  for  that  time.  It  is  surely  no  justi- 
fication to  a  wrong-doer  that  he  takes  away  only  one 
twenty-eighth  of  his  neighbor's  property,  comfort,  or 
life.     The  qualifications  contained  in  the  opinions  of 


EQUITY    CASES    SIMPLIFIED.  1<53 

judo^es  that  a  lawful  business  will  not  be  restrained  for 
every  trifling  inconvenience,  and  that  persons  must 
not  stand  on  extreme  rights,  and  bring  actions  in 
respect  to  every  matter  of  annoyance,  does  not  refer 
to  the  proportion  of  time  for  which  the  nuisance  is 
continued,  but  only  the  degree  or  kind  of  annoyance." 

If  the  act  complained  of  is  really  a  nuisance,  the  frequency  of 
its  repetitions,  or  the  length  of  its  maintenance,  is  not  a  matter  to 
be  considered.  The  same  is  true  of  a  public  nuisance.  Thomas 
Gallagher,  of  Massachusetts,  being  prosecuted  for  maintaining  a 
common  nuisance,  to  wit,  a  tenement,  for  the  illegal  sale  of  intoxi- 
cating liquors,  the  proof  was  that  the  tenement  was  a  tent  in 
which  Thomas  had  dispensed  whiskey  and  water  for  the  space  of 
only  two  hours.  Yet  Thomas  di^  not  escape  the  penalty.  It  was 
the  nature  of  the  act  done,  and  not  the  length  of  time  during 
which  it  was  committed,  that  constituted  the  offence,  quoth  the 
court.     Com.  v.  Gallagher,  1  Allen,  592. 


1(]^  EQUITY    CASES    SIMPLIFIED. 


INFRINGEMENT  OF  PATENTS. 


CAI.DWEL.L.  V.   VANVLISSENGEN. 

[9  Hare,  415.] 

In  the  year  1838,  there  was  granted  to  James  Lowe,  a 
patent  for  a  steam  screw  for  propelling  vessels. 
Twelve  years  thereafter  some  ship-owners  in  Holland 
com.menced  to  manufacture  these  screws,  and  to  apply 
them  to  their  steamships  which  ran  between  Holland 
and  England.  Finding  this  out,  Lowe's  assignees,  the 
owners  of  the  patent,  applied  to  the  Court  of  Chancery 
to  enjoin  the  Dutchmen  from  using  the  patent  in  Eng- 
lish waters.  The  defendants'  lawyer  had  two  objections 
to  offer,  viz.:  — 

1.  In  the  first  place  he  said  that  the  court  could  not 
exercise  its  jurisdiction  restraining  the  use  by  foreigners 
of  the  patent  on  board  a  ship  built  in  a  foreign  coun- 
try, and  owned  and  manned  by  subjects  of  that 
country. 

2.  In  the  second  place,  he  argued  that  the  plaintiffs 
should  first  establish  at  law  that  their  patent  was  a 
valid  one. 

But  the  Chancellor  overruled  both  objections.  ♦'  I 
take,"  said  he,  "  the  rule  to  be  universal  that  foreigners 
are,  in  all  cases,  subject  to  the  laws  of  the  country  in 
which  they  may  happen  to  be,"  and  as  to  the  second 
point,  he  said  :  "  The  question  whether  the  court  will 


EQUITY    CASES    SIMl'LIFIED.  1(!5 

interfere  to  protect  a  ijatentec  before  lie  has  established 
his  right  at  Liw,  or  will  suspend  its  interference  until 
the  right  at  law  has  been  established,  appears  to  uic  to 
depend  upon  verj''  simple  principles.     It  is  part  of  the 
duty  of  this  court  to  protect  property  pending  litis^a- 
tion,  but  when  it  is  called  on  to  exercise  that  duty,  the 
court  requires  some  proof  of  title  in  the  party  who 
calls  for  its  interference.     In  the  case  of  a  new  patent 
this  proof  is  wanting  ;  the  public,  whose  interests  are 
affected  by  the  patent,  have  had  no  opportunity  of  con- 
testing the    validity  of  the  patentee's  title,   and  the 
court  therefore  refuses  to  interfere  until   his  right  has 
been  established  at  law.     But  in  a  case  where   there 
has  been  long  enjoyment  under  the  patent  (the  enjoy- 
ment, of  course,  including  use),  the  public  have  had 
the  opportunity  of  contesting  the  patent,  and  the  fact 
of  their  not  having  done  so  successfully  affords  at  least 
prima  facie  evidence  that  the  title  of  the  patentee  is 
good,  and  the  court  therefore   interferes    before    the 
right  is   established  at  law.     In  the    present  case,   I 
think  that  the  plaintiffs  have  proved  such  a  case  of  en- 
joyment under  the   patent,  and    of  their  title  having 
been  maintained  at  law  against  the  several  attempts 
which  have  been  made  to  impeach  it,  that  the  court  is 
bound  at  once  to  interfere  for  their  protection,"  and 
the  injunction  was  issued. 

Equity's  relief  by  injuuction  is  very  efficacious  against  those 
who  infringe  patent  rights,  and  is  better  than  an  action  for  damages 
at  law,  in  three  ways :  First,  the  court  will  order  an  inspection  of 
the  defendant's  machinery  or  premises,  to  see  in  what  particulars 
the  plaintiff 's  patent  is  being  Infringed;  second,  it  will  perpetually 
enjoin  these  infringements,  and  thirdly,  it  will  make  the  defendant 
account  for  the  profits  he  has  made,  and  will  make  him  show  them. 

Of  course,  the  plaintiff  must  have  a  valid  patent  in  order  to  give 


IGG 


EQUITY    CASES    SIMPLIFIED. 


him  any  title  to  come  into  equity  for  relief;  but  the  above  case  es- 
tablishes the  rule  that  when  the  plaintiff 's  title  is  admitted  or  seems 
clear  from  all  the  circumstances  to  the  court,  equity  will  not  com- 
pel him  to  establish  it  at  law,  and  from  the  length  of  time  of  its  ex- 
istence a  presumption  of  an  exclusive  right  will  arise. 


EQUITY   CASES    SIMPLIFIED.  1(J7 


LITERARY  PIRACY. 


PRINCE  ALBERT  v.  STRANGE. 

[1  MacN,  &  G.  25.1 

When  Queen  Victoria  was  a  good  many  years 
younger  tlian  she  is  now,  she  and  her  husband,  to 
amuse  themselves,  made  some  etchings,  and  had  copies 
made  for  themselves  and  their  iutinuite  friends,  on  a 
private  press.  Somebody  surreptitiously  obtained  a 
copy  of  the  set  and  sold  them  to  a  bookseller,  who, 
knowing  the  public  taste  for  anything  smacking  of 
royalty,  advertised  the  forthcoming  publication  of  the 
etchings  and  solicited  orders.  The  pictures  must  have 
been  very  bad,  for  Prince  Albert,  when  he  heard  that 
they  were  going  to  be  given  to  the  public,  obtained 
from  the  Court  of  Chancery  an  injunction  restraining 
their  publication,  as  also  that  of  the  catalogue  an- 
nouncing them,  by  the  defendant,  although  he  was  a 
bona  fide  purchaser.  This  was  on  the  ground  that  the 
author  or  composer  of  a  work  of  literature,  art  or  sci- 
ence, as  long  as  it  is  unpublished,  has  a  right  in  it 
which  no  one  can  invade,  without  his  consent. 


FOIiSOM  V.  MARSH. 

[2  Story,  100.] 

Jared  Sparks  wrote  a"  Life  of  Washington,"  in  twelve 
volumes,  and  duly  copyrighted  it  according  to  the  laws 


1(J8  EQl'lTY    CASKS    SIMPLIFIED. 

of  the  United  States  in  this  regard.  Several  years 
after,  the  Rev.  Charles  W;  Upharn  was  seized  with  a  like 
desire  to  honor  the  father  of  his  country  in  a  like  way, 
and  soon  from  his  pen  there  appeared  a  "Life  of 
Washington"  in  two  volumes.  When  Mr.  Sparks' 
publishers  came  to  look  at  the  new  work,  they  discov- 
ered that  there  was  a  good  deal  of  similarity  between 
the  two.  Of  the  866  pages  of  Mr.  Upham's  work,  353 
jjages  had  been  copied  entire  from  Mr.  Sparks' 
"  Life."  Their  remonstrances  being  in  vain,  they 
sought  the  assistance  of  the  Court  of  Chancery,  where 
an  injunction  was  obtained  restrainiHg  Mr.  Upham 
from  sellins:  his  Ijook,  and  orderins:  an  account  of  his 
l^rofits  to  be  taken. 

After  a  work  is  published  tliere  is  no  common-law  copyright  in 
the  United  States.  An  author  who  desires  to  publish  his  book  and 
obtain  a  monopoly  of  its  sale  must  comply  with  the  copyright 
statutes,  by  entering  it  with  the  Librarian  of  Congress,  and  print- 
ing upon  each  copy  the  notice  of  copyright. 

But  before  publication  an  author  has  a  common-law  copyright, 
and  no  one  who  has  obtained  his  work  without  his  consent  can 
make  any  uss  of  it.  Printing  a  few  copies  of  a  book  or  sketch  for 
the  use  of  your  friends,  or  delivering  a  lecture  to  students,  or  per- 
forming a  play  on  the  stage,  is  held  not  to  be  a  publication  of  the 
thing  so  as  to  divest  the  author's  property. 

An  author  who  has  duly  copyrighted  his  work  holds  title 
against  the  world,  and  equity  will  enjoin  any  person  who  publishes 
it  without  his  consent.  To  this  principle,  however,  there  are  two 
qualifications:  — 

1 .  Equity  will  not  assist  the  proprietor  of  an  immoral,  libelous,  ob- 
scene or  seditious  book,  pamphlet  or  loork  of  art.  The  United  States 
Circuit  Court  a  few  years  since  refused  to  enjoin  the  unauthorized 
production  of  the  "  Black  Crook,"  on  the  ground  that  "  it  panders 
to  a  prurient  curiosity  or  an  obscene  imagination  by  very  questiona- 
ble exhibitions  and  attitudes  of  the  female  person."  Martinetti  v. 
Maguire,  1  Deady,  216. 

2.  Equity  icill  not  enjoin  bona  fide  quotations  or  a  bona  fide  abridg- 
ment of  a  copyrighted  work.     It  is  clearly  settled  that  it  is  not  an  in- 


EQUITY    CASES    SIMPLIFIED  l<i!J 

fringemeut  of  a  copyright  of  a  book. to  make  bona  fide  quotations 
or  extracts  from  it,  or  a  bona  fide  abridgement  of  it,  or  to  make  a 
bona  fide  use  of  the  common  materials  in  the  composition  of  an- 
other work.  But  the  question  always  arises,  Has  there  been  a 
legitimate  use  of  the  copyright  publication  by  the  fair  exercise  of  a 
mental  operation  deserving  the  character  of  a  new  work?  If  one, 
instead  of  searching  into  the  common  sources  and  obtaining  his 
materials  from  them,  avails  himself  of  the  labor  of  his  predeces- 
sor, and  adopts  his  arrangement,  or  does  so  with  only  a  colorable 
variation,  this  will  be  an  infringement.  In  the  leading  case  above,  it 
was  argued  that  the  Rev.  Mr.  Upham  had  not  gone  beyond  this;  but 
the  court  thought  otherwise.  "  What  constitutes  a  fair  and  bona  fide 
abridgment,"  said  Judge  Story,  "is  one  of  the  most  difficult 
points,  under  particular  circumstances,  which  can  well  arise  for 
judicial  discussion.  It  is  clear  that  a  mere  selection  or  different 
arrangement  of  parts  of  the  original  work,  so  as  to  bring  the  work 
into  a  smaller  compass,  will  not  be  held  to  be  such  an  abridgment. 
There  must  be  real,  substantial  condensation  of  the  materials,  and 
intellectual  labor  and  judgment  bestowed  thereon,  and  not  merely 
the  facile  use  of  the  scizzors,  or  extracts  of  the  essential  parts 
constituting  the  chief  value  of  the  original  work." 

Equity  has  sometimes  enjoined  the  publication  of   private  let- 
ters.   The  rules  on  this  subject  are  :  — 

1 .  The  writer  of  a  letter  has  such  a  right  in  it  as  to  entitle  him 
to  restrain  its  publication  by  the  party  written  to  or  his  assigns. 

2.  The  party  written  to  has  a  right  to  restrain  its  publication  by 
a  stranger. 


170  EQUITY    CASES    SIMPLIFIED. 


TRADE-MARKS.— FAMILY  NAME  USED  TO  DE- 
CEIVE. 


CROFT  V.  DAY. 

L7  Beav.  23l';  2  Tud  Ld.  Cas.  5«3.] 

Day  &  Martin's  blacking  is,  oi*  was  at  the  time  of 
this  case,  about  as  well  known  in  England  as  the 
Times  newspaper  or  the  Tower  of  London.  The  firm 
was  established  in  1801,  and  had  been  in  existence 
nearly  fifty  years,  when  a  nephew  of  the  senior  part- 
ner commenced  making  blacking  himself,  and  finding 
a  person  of  the  name  of  Martin,  obtained  the  use  of 
his  name,  and  began  to  ofter  to  the  public  Day  & 
Martin's  blacking,  put  up  in  bottles  and  bearing  labels 
having  a  general  resemblance  to  those  of  the  original 
firm.  The  latter  did  not  like  this  at  all,  and  requested 
the  Court  of  Chancery  to  restrain  the  nephew.  An 
injunction  was  issued  to  this  effect.  "  The  principle 
in  these  cases  is,"  said  the  court,  "  that  no  man  has  a 
riHit  to  sell  his  own  ojoods  as  the  o-oods  of  another. 
No  man  has  a  right  to  dress  himself  in  colors  or  adopt 
and  bear  symbols  to  which  he  has  no  peculiar  or  ex- 
clusive right,  and  thereby  personate  another  person 
for  the  purpose  of  inducing  the  public  to  suppose, 
either  that  he  is  that  other  person,  or  that  he  is  con- 
nected with  and  selling  the  manufacture  of  such  other 
person,  while  he  is  really  selling  his  own." 


KQUITY    CASES    SIMPLIFIED.  171 


TRAUE-MARKS—NO  RELIEF  TO  WRONGDOER. 


SEABURY  V.   GROSVENOR. 

[14  Blatchf.  262.] 

A  certain  firm  in  New  York  prepared  plasters,  which 
they  called  "  Benson's  Capcine  Plasters."  After  the 
manner  of  patent  medicine  men  generally,  they  adver- 
tised their  great  remedies  for  pains  and  rheumatics  all 
over  the  country.  The  readers  of  their  advertisements 
were  informed  that  a  celebrated  chemist  had  recently 
discovered  a  vegetable  of  extraordinary  value,  with 
which  he  had  effected  the  most  marvellous  cures  ;  that 
this  great  remedy  was  called  Capcine,  and  was  used  in 
the  celel)rated  Capcine  plasters.  The  easily  gulled 
public  of  course  swallowed  the  story  and  bought  the 
plasters.  Attracted  by  the  profit  to  be  made  from  the 
name,  another  party  commenced  to  sell  an  article  he 
called  Capcine  plasters  ;  and  to  enjoin  him  from  so 
doing  the  firm  brought  a  suit  in  equity. 

Unfortunately  for  them,  however,  the  evidence  in 
court  proved  that  there  was  no  such  vegetable  or 
article  as  Capcine  known  to  chemistry  or  medicine,  and 
on  this  ground  the  injunction  was  refused.  "  The 
authorities  are  clear,"  said  the  court,  "  that  in  a  case 
of  this  description,  a  plaintiff  loses  his  right  to  claim 
the  assistance  of  a  Court  of  Equity." 

A  man  manufacturing  or  selling  any  kind  of  goocKs  has  a  right  to 
distinguish  them  by  a  symbol,  which  symbol  is  called  a  trade-mark, 
and  is  used  to  show  that  he  is  the  manufacturer  or  seller  as  the 
case  may  be.  For  another  person  to  use  his  symbol  is,  therefore, 
(1)  an  invasion  of  his  property  right,  and  (2)  a  fraud  on  the  public, 


172  EQUITY    CASES    SIMPLIFIED. 

who  are  enticed  into  purchasing  goods  of  B.  thinking  they  are  the 
goods  of  A.  To  prevent  this  sort  of  thing,  equity  will  enjoin  the 
infringement  of  a  trade-mark ;  except  as  was  held  in  the  Cap- 
cine  case  above,  when  the  plaintiff  himself  is  guilty  of  fraud. 

The  right  of  a  person  or  firm  to  a  trade-mark  is  acquired  by  ex- 
clusive user.  The  first  person  who  takes  the  name  and  applies  it 
to  the  goods,  or  to  anything  of  a  mercantile  character,  will  have 
the  exclusive  right,  whictl  right  equity  will  protect.  The  prior  use 
is  enough  to  entitle  him,  even  although  it  has  only  been  for  a  very 
short  time.  A  liquorice  maker  stamped  his  sticks  with  the  word 
"Anatolia,"  and  about  the  beginning  of  September,  1861,  put  his 
goods  on  the  market  with  this  symbol  on  them.  Less  than  two 
weeks  after,  a  rival  candy-maker  commenced  to  stamp  his  liquorice 
with  the  same  word.  Liquorice  man  No.  1  was  able  to  enjoin  his 
imitator.  "  It  has  been  pressed,"  said  the  court  which  granted  the 
injunction,  "  that  the  plaintiff  had  no  time  to  acquire  a  property  in 
this  trade-mark,  property  in  a  mark  of  this  kind  requiring  antece- 
dent user  to  establish  a  repute  in  the  name.  It  was  not,  however, 
necessary  to  say  when  property  in  such  a  mark  was  capable  of  being 
acquired;  probably  it  might  be  necessary,  to  support  a  bill  of  this 
kind,  that  the  mark  should  have  been  applied  to  the  goods  right- 
fully by  the  plaintiff;  secondly,  that  the  article  to  which  it  is  applied 
should  be  an  article  vendible  in  the  market;  thirdly,  that  the  de- 
fendant knowing  this,  has  imitated  it  for  the  purpose  of  passing 
goods  into  the  market.  "  Mc Andrew  v.  Basset,  12  W.  R.  777;  10  L. 
T.  (n.  s.)  65.  But  it  has  been  ruled'  that  property  in  a  trade-mark 
cannot  be  acquired  before  the  article  is  actually  put  upon  the 
market  for  sale  —  until  that  time  any  one  may  use  it,  and  obtain  the 
exclusive  right  to  it.     Maxwell  v.  Hogg,  L.  R.  2  Ch.  App.  307. 

But  it  is  not  every  word  or  phrase  that  may  be  the  subject  of  a 
trade-mark.  "  I  have  not  the  least  doubt,"  said  an  English  judge 
in  one  case,  "that  if  the  plaintiff  has  invented  a  fanciful  and  ridicu- 
lous name  —  and  the  more  ridiculous  the  better  it  is  for  his  busi- 
ness—  and  has  used  it  in  his  trade,  that  the  court  would  take  care 
that  nobody  else  should  use  that  absurd  name;  for  such  user  could 
only  be  a  user  for  the  express  purpose  of  imitating  the  plaintiff's, 
and  so  defrauding  the  plaintiff,  by  representing  the  goods  manu- 
factured by  one  person  to  be  the  goods  manufactured  by  another." 
Young  V.  Macrae,  9  Jur.  (n.  s.)  322.  It  is  better  that  the  word 
should  be  absurd,  —  it  is  necessary  that  it  should  be  to  some  extent 
fancy,  —  for  unless  a  man  has  an  exclusive  property  in  the  article 
itself,  he  cannot  have  a  trade-mark  in  its  proper  name.    Thus 


EQUITY    CASES    SIMPLIFIED. 


173 


"paraffine  "  having  come  to  be  an  article  of  commerce,  it  has  been 
held  that  one  could  not  appropriate  the  word  as  a  trade-mark;  and 
the  same  was  held  of  "Cuudurango  Ointment,"  ointment  being  a 
a  generic  term,  and  Cundurango  the  name  of  a  well-known  plant. 
But  a  person  may  apply  a  common  name  to  an  article  not  at  all 
descriptive  of  the  article,  and  which  word  has  been  applied  to  arti- 
cles of  other  kinds,  and  it  will  constitute  a  valid  trade-mark  —  as 
for  example,  "Excelsior"  Soap.  Braham  v.  Bustard,  1  H.  and 
M.  447. 


174  EQUITY    CASES    SIMPLIHED. 


TRADE-MARKS  —FAMILY  NAMES  USED   WITH- 
OUT INTENT  TO  DECEIVE. 


MENEELY  v.   MENEELY. 

[1  Hun,  367;  02  N.  Y.  427.] 

Andrew  and  Edwin  A.  Meneely  were  bell  manufac- 
turers in  Troy,  New  York,  the  business  after  the  death 
of  Andrew  being  carried  on  by  Ed  win  and  George  R. 
Meneely.  The  Meneely  bells  became  very  celebrated, 
and  it  was  therefore  with  considerable  disgust  that  the 
firm  found  out  one  day  that  Clinton  Meneely  and  one 
Kimberly  were  about  to  start  a  rival  bell  foundry  in 
Troy.  But  it  was  not  long  until  the  new  works  were  in 
full  blast  and  the  bells  of  "  Meneely  &  Kimberly  ' '  were 
being  cast  and  sold  to  any  one  that  wanted  a  bell. 
The  old  firm  tried  to  enjoin  the  use  of  the  word 
Meneely  by  the  new  firm,  but  failed,  "  Everyman," 
said  the  court,  "has  the  absolute  right  to  use  his  own 
name  in  his  own  business,  even  though  he  may  inter- 
fere or  injure  the  business  of  another  person  bearing 
the  same  name,  pix)vided  he  does  not  resort  to  any  ar- 
tifice or  contrivance  for  the  purpose  of  producing  the 
impression  that  the  establishments  are  identical,  or  do 
anything  calculated  to  mislead.  Where  the  only  con- 
fusion created  is  that  which  results  from  the  similarity 
of  the  names,  the  courts  will  not  interfere.  A  person 
cannot  make  a  trade-mark  of  his  own  name,  and  thus 
obtain  a  monopoly  of  it  which  will  debar  all  other  per- 


EyUITY    CASKS    SIMPLIFIKD.  175 

sons  of  the  Siune  name  from  using  their  own  names  in 
their  own  business." 

Meneely  v.  Meneely  is  an  interesting  case  as  showing  that,  in  the 
case  of  using  family  names  by  persons  entitled  to  use  them,  the 
power  of  the  court  will  only  be  interposed  where  there  has  been 
fraud  or  deceit  practised,  or  where  some  fraudulent  device  has 
been  employed  to  injure  the  business  of  another,  and  impose  on 
the  public.  This  case  does  not  conflict  with  Croft  v.  Day,  for  the 
principle  is  the  same  in  both,  for  in  Croft  v.  Day  the  defendants 
were  not  enjoined  from  using  their  names  at  all,  but  in  so  using 
them  in  connection  with  bottles  and  labels  like  the  plaintiffs  as  to 
deceive  the  public. 


178  EQUITY    CASES    SIMPLIFIED. 


STATEMENTS  AS   TO  FORMER  EMPLOYMENT. 


GLENNY  V.  SMITH. 

[2  Drew.  &  Sm.  476.] 

One  of  the  employees  of  Thresher;  Glenny  &Co., 
hosiery  and  shirt  makers,  of  the  Strand,  London,  who 
rejoiced  in  the  unromantic  name  of  Smith,  left  their 
service  and  opened  a  shop  for  himself  on  another  street 
in  the  same  city.  Over  the  door  of  his  shop  he  put 
his  own  name  "  Frank  P.  Smith,"  but  on  the  awning 
and  doors  he  added  the  words  "  From  Thresher  & 
Glenny,"  being  careful  to  put  the  word  "from"  in 
very  small  letters,  not  likely  to  attract  attention.  It 
also  appeared  that  in  the  middle  of  the  day,  when  the 
awning  was  let  down  to  keep  out  the  sun,  it  entirely 
shut  ofl'  from  view  the  name  of  Mr.  Smith  over  the 
door.  Under  these  circumstances  it  was  not  strange 
that  several  customers  went  into  Mr.  Smith's  shop  in 
the  belief  that  it  was  a  shop  of  Thresher  &  Glenny. 
This  somewhat  incensed  the  latter  firm,  and  they 
ajjplied  to  the  Court  of  Chancery  to  have  Mr.  Smith 
restrained  from  using  their  names  in  this  way.  Mr. 
Smith  replied  that  he  had  intended  no  deception,  and 
had  even  gone  so  far  as  to  instruct  his  clerks  not  to 
permit  customers  to  buy  under  the  impression  that 
they  were  buying  from  Thresher  &  Glenny.     "  There 


EQUITY   CASES    SIMPLIFIED.  177 

is  no  question,"  said  the  Vice-Cliiuicollor,  in  deciding 
the  case,  "  hut  that  if  a  man,  having  been  in  the  em- 
ployment of  a  firm  of  reputation,  sets  up  in  business 
for  himself,  he  has  a  right  in  any  way  in  which  he- 
thinks  fit  (provided  he  does  not  deceive),  to  inform 
the  public  that  he  has  been  in  such  employment,  and 
in  that  way  to  appropriate  to  himself  some  of  the 
benefit  arising  from  the  reputation  of  his  former 
emplovers.  But  in  so  doing  he  must  take  special  care 
that  it  is  done  in  sucli  a  way  as  not  to  mislead  the 
public  to  tlie  detriment  of  his  former  employers.  It 
does  not  signify,  for  the  purpose  of  tlie  plaintiff's  right 
to  relief,  whether  the  defendant  has  acted  with  a  fraudu- 
lent intention  or  not;  it  is  enough  if,  even  without 
any  unfair  intention,  he  has  done  that  whicli  is 
calculated  to  mislead  the  public,  *  *  *  and  it  is  not 
the  question  whether  the  public  generally,  or  even  a 
majority  of  the  public,  is  likely  to  be  misled  ;  but 
whether  the  unwary,  the  heedless,  the  incautious  por- 
tion of  the  public  would  be  likely  to  be  misled." 

Tested  by  these  rules,  the  court  came  to  the  con- 
clusion that  on  the  evidence  in  the  case,  deception  was 
probable,  and  enjoined  Mr.  Smith  from  using  the  firm 
name  as  he  had  been  doing. 

The  law  on  this  subject  is  so  welllaid  down  in  the  above  case 
that  no  further  explanation  is  necessary  here.  The  case  is  inter- 
esting in  showing  that  the  intention  of  the  defendant  to  deceive  the 
public  is  not  the  gist  of  the  relief,  but  that  the  probability  that  the 
public  will  be  deceived  is.  A  man  who  has  been  employed  by  a  firm 
of  reputation,  may  use  their  name  for  the  purpose  of  informing 
the  public  that  he  comes  before  them  recommended  by  the  fact  of 
having  been  employed  by  an  establishment  of  admitted  reputation, 
but  when  he  advertises  this  by  signs  on  his  store,  he  must  be  very 


178  EQllTY    CASES    SIMPLIFIED. 

careful  not  to  let  it  be  supposed  that  they  are  the  proprietors. 
The  safest  plan  would  be  to  give  such  words  as  "from,"  "late  with," 
"  formerly  of,"  equal  prominence  on  the  signs  with  the  name  of  the 
late  firm. 


PART    II. 


Constitutional    Cases 
Simplified. 


CONSTITUTIONAL  CASES. 


CHAPTEE  I.—  GE:^rEEAL  PEIIS^CIPLES. 


GENERAL  LIMITATIONS  IN  CONSTITUTION  DO 
NOT  APPLY  TO  THE  STATES. 


BARRON  V.    THE  MAYOR  OF  BALTIMORE. 

[7  Pet.  243.] 

Mr.  Barron,  of  Baltimore,  was  the  owner  of  a  wharf 
which  derived  its  popularity  from  its  enjoying  the 
deepest  water  in  the  harbor.  This  reputation,  however, 
was  destined  to  be  short-lived,  for  the  city  in  grad- 
ing some  streets,  directed  from  their  accustomed  ways 
several  streams  of  water  which  carried  down  to  Mr. 
Barron's  wharf  so  much  mud  and  sand  as  to  render 
the  water  so  shallow  that  no  more  vessels  were  able  to 
come  there.  When  Mr.  Barron  asked  to  be  compen- 
sated for  his  lost  wharfage  dues,  the  city  pointed  to  its 
charter,  which  justified  it  in  doing  exactly  as  it  had  done. 
Then  Mr.  Barron  went  to  law  alleging  that  the  city  had 
taken  his  property  "  without  just  compensation,"  and 
that  as  the  United  States  Constitution  prohibited  this 
very  thing  in  express  words,  the  city  must  pay  him. 

It  was  held,  however,  that  as  it  was  the  State,  and 


182  CONSTITUTIONAL    CASES    SIMPLIFIED. 

not  tlie  United  States,  which  liad  done  the  act,  the  pro- 
hibition did  not  apply.  The  general  limitations  con- 
tained in  the  United  States  Constitution,  the  conrt  said, 
had  reference  to  the  National  government  and  did  not 
apply  to  the  States  at  all. 

The  United  States  Constitution,  besides  granting  many  powers 
to  the  general  government,  contains  very  many  limitations  to  its 
power  as  well.  For  example,  it  prescribes  that  no  form  of  religion 
shall  be  established ;  nor  the  free  exercise  of  religion  be  prohibited  ; 
that  the  freedom  of  the  press  or  of  speech  shall  not  be  abridged ; 
that  the  right  of  the  people  to  keep  and  bear  arms  shall  not  be  in- 
fringed ;  that  soldiers  shall  not  in  time  of  peace  be  quartered  in 
Louses  without  the  consent  of  the  owners,  nor  in  time  of  war,  except 
in  the  manner  prescribed  bylaw;  that  unreasonable  searches  and 
seizures  of  persons,  houses,  papers  and  effects  shall  not  be  made; 
thatno  warrant  shall  be  issued  except  upon  probable  cause,  supported 
by  oath,  and  particularly  describing  the  place  to  be  searched  and 
the  persons  and  things  to  be  seized ;  that  no  person  shall  be  held 
to  answer  for  a  capital  or  otherwise  infamous  crime  unless  on  a 
presentment  or  indictment  of  a  grand  jury,  except  in  cases  arising 
in  the  land  or  navel  forces,  or  in  the  militia  when  in  actual  service 
in  time  of  war  or  public  danger;  that  no  person  shall  be  subject  for 
the  same  offence  to  be  put  twice  in  jeopardy  of  life  or  limb,  nor  be 
compelled  in  any  criminal  case  to  be  a  witness  against  himself;  nor 
be  deprived  of  life,  liberty  or  property  without  due  process  of  law ; 
that  private  property  shall  not  be  taken  for  public  use  without  just 
compensatiou;  that  in  all  criminal  prosecutions,  the  accused  shall 
enjoy  the  right  of  a  speedy  and  public  trial  by  an  impartial  jury  of 
the  State,  and  in  the  district  wherein  the  crime  shall  have  been 
committed,  and  must  be  informed  of  the  nature  and  cause  of 
the  accusation,  and  must  be  confronted  with  the  witnesses  against 
him,  and  may  have  compulsory  process  to  obtain  his  own  wit- 
nesses, and  may  have  the  assistance  of  counsel  in  his  defence; 
that  the  trial  by  jury  shall  be  preserved  in  suits  at  common  law, 
where  the  value  in  controversy  shall  exceed  twenty  dollars,  and 
that  excessive  bail  shall  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  unusual  punishments  be  inflicted. 

Barron  v.  Mayor  of  Baltimore  is  important  as  deciding  that  these 
limitations  are  addressed  to  the  Federal  government  only,  and  do  not 
bind  the  States.  "The  Constitution,"  said  Chief  Justice  Mar- 
shall in  that  case,  "  was  ordained  and  established  by  the  people  of 


CONSTITUTIONAL    CASKS    SIMPLIFIED.  1^3 

the  United  States  for  themselves,  for  their  own  government,  and 
not  for  the  government  of  the  individual  States.  Each  State  es- 
tablished a  Constitution  for  itself,  and  that  Constitution  provided 
such  limitations  and  restrictions  on  the  powers  of  its  particular 
government  as  its  judgment  dictated.  The  people  of  the  United 
States  framed  such  a  government  for  the  United  States  as  they  sup- 
posed best  adapted  to  their  situation,  and  best  calculated  to  pro- 
mote their  intei-ests.  The  powers  they  conferred  on  this  govern- 
ment were  to  be  exercised  by  itself;  and  the  limitations  on  power, 
if  expressed  in  general  terms,  are  naturally,  and  we  think  neces- 
sarily, applicable  to  the  government  created  by  the  instrument. 
They  are  limitations  of  power  granted  in  the  instrument  itself; 
not  of  distinct  governments,  framed  by  different  persons  and  for 
different  purposes.  *  *  *  They  must  be  understood  as  restrain- 
ing the  power  of  the  general  government,  not  as  applicable  to  the 
States.  In  their  several  Constitutions  they  have  imposed  such  re- 
strictions as  their  own  wisdom  suggested,  such  as  they  deemed  most 
proper  for  themselves."  As  a  matter  of  fact,  most  of  the  State  Con- 
stitutions, copying  the  Federal  Constitution  in  this  respect,  contain 
similar  provisions  limiting  the  power  of  the  Legislatures.  But  if 
they  do  not,  the  Federal  Constitution  cannot  be  appealed  to,  to 
protect  a  person  against  State  legislation. 

There  are,  however,  certain  limitatioias  in  the  Federal  Constitu- 
tion on  the  powers  of  the  States.  Thus,  it  is  declared  in  sect.  10, 
that  no  State  shall  enter  into  any  treaty,  alliance,  or  confederation, 
grant  letters  of  marque  and  reprisal,  coin  money,  emit  bills  of 
credit,  make  anything  but  gold  and  silver  coin  a  tender  in  payment 
of  debts,  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  impair- 
ing the  obligation  of  contracts,  or  grant  any  title  of  nobility;  also 
that  no  State  shall,  without  the  consent  of  Congress,  lay  any  imports 
or  duties  on  imports  or  exports,  except  what  may  be  absolutely 
necessary  for  executing  its  inspection  laws,  or  lay  any  duty  of  ton- 
nage, keep  troops  or  ships  of  war  in  time  of  peace,  enter  into  any 
agreement  or  compact  with  another  State,  or  with  a  foreign  power, 
or  engage  in  war,  unless  actually  invaded,  or  in  such  imminent 
danger  as  will  not  admit  of  delay.  By  the  Fourteenth  Amendment 
to  the  Constitution,  certain  other  limitations  are  placed  upon  the 
power  of  the  States.  "No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States,  nor  shall  any  State  deprive  any  person  of  life,  lib- 
erty, or  property  without  due  process  of  law,  nor  deny  to  any  per- 
son within  its  jurisdiction  the  equal  protection  of  the  laws." 


184  CONSTITUTIONAL    CASES    SIMPLIFIED. 

As  to  all  these  latter  provisions,  the  Federal  courts  will  consider 
the  question  whether  a  State  law  conflicts  with  them,  and  if  it  is 
found  to  do  so  will  declare  it  unconstitutional  and  void. 


CONSTITUTIONAL    CASES    SIMPLIFIED.  185 


IMPLIED  POWERS. 


Mcculloch  v.  the  state  of  Maryland. 

[4  Wheat.  31G.] 

About  the  year  1816,  Congress  established  a 
United  States  Bank,  for  the  purpose  of  assisting  the 
government  in  the  management  of  its  finances.  There 
was  great  opposition  to  the  measure,  and  the  question 
of  the  constitutionality  of  such  an  act  came  at  last  be- 
fore the  Supreme  Court  of  the  United  States  for 
decision.  The  b:ink  contended  that,  although  the 
Constitution  did  not,  in  express  terms,  authorize  Con- 
gress to  establish  a  national  bank,  yet  it  had  given  it 
power  to  borrow  money,  collect  taxes,  and  pay  the 
debts  of  the  nation,^  and  hud  expressly  authorized 
Congress  "  to  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution  the  foregoing 
powers,"^  and  this  it  argued  was  authority  enough. 
The  enemies  of  the  bank,  on  the  other  hand,  took  the 
ground  that  "  necessary  "  meant  indispensable,  and 
as  all  the  acts  named  could  be  performed  without  a 
bank,  the  creation  of  the  United  States  Bank  was 
unconstitutional. 

The  court  held  the  act  valid,  on  the  ground  that  such 
an  institution  Avas  a  legitimate  means  of  carrying  out 
the  general  powers  given  to  Congress,  and  that  the  de- 
gree of  its  necessity  was  a  question  for  the  Legislature 


1  Const.  Art.  I,  sect.  8.  ^  Const.  Art.  I,  sect,  18. 


IbG  CONSTITUTIONAL    CASES    SIMPLIFIED. 

and  not  for  the  court.  "  We  admit,"  said  Chief  Jus- 
tice Marshall,  "  as  all  must  admit,  that  the  powers  of 
the  governjnent  are  limited,  and  that  the  limits  are  not 
to  he  transcended.  But  we  think  the  sound  construc- 
tion oft'ic  Constitution  must  allow  the  National  Lejjis- 
lature  that  discretion,  with  respect  to  the  means  by 
which  the  powers  it  confers  are  to  be  carried  into  exe- 
cution, which  will  enable  that  body  to  perform  the 
high  duties  assigned  to  it,  in  the  manner  most  benefi- 
cial to  the  people.  Lot  the  end  be  legitimate,  let  it  be 
within  the  scope  of  the  Consitution,  and  all  means 
which  are  a[)propriate,  and  which  are  plainly  adapted 
to  that  end,  which  are  not  prohibited,  I)ut  consist  with 
the  letter  and  spirit  of  the  Constitution,  are  consti- 
tutional.'" 

The  governraeut  of  the  United  States  is  one  of  limited  powers. 
It  has  sti'ictly  no  powers  except  such  as  are  given  to  it  in  the  Con- 
stitution of  the  United  States.  Herein  it  differs  from  the  States, 
which  have  all  powers,  except  such  as  have  been  conceded  by  the 
people  to  the  general  government.  "  The  government  of  the 
United  States  can  claim  no  powers  which  are  not  granted  to  it  by 
the  Constitution;  and  the  powers  actually  granted  must  be  suchas 
are  expressly  given  or  given  b.ruecessary  implication."  Martin  v. 
Hunter's  Lessee,  1  Wheat.  304.  When  any  act  is  attempted  by  the 
National  government,  authority  for  that  act  must  be  found  within 
the  Constitution.  Two  important  principles  have  been  incorpor- 
ted  on  this  general  rule. 

1.  Within  the  scope  of  the  functions  assigned  to  it,  over  the 
subjects  committed  to  its  care,  the  power  of  the  National  govern- 
ment is  absolute  and  supreme. 

2.  The  Constitution  does  not  descend  to  a  minute  description  of 
the  powers  given  to  the  National  government ;  it  uses  only  general 
terms.  It  contains  a  list  of  the  grand  objects  and  purposes  which 
are  committed  to  it,  but  does  not  attempt  to  define  all  the  means 
and  methods  by  which  those  objects  may  be  attained,  but  leaves  it 
to  Congress  to  adopt  its  own  means.  A  few  instances  and  illus- 
trations of  this  will  suffice.     Congress  is  authorized  to  borrow 


CONSTITUTIONAL    CASKS    SIMPLIFIED.  1«7 

money;  it  is  not  expressly  authorized  to  establish  a  bunk,  but 
this  is  cue  method  of  borrowing  money,  and  liencc  as  held  in 
McCulloch  V.  Maryland,  it  has  power  to  establish  a  United  Stales 
bank.  Congress  is  authorized  to  lay  taxes,  duties,  imposts  and 
excises.  A  protective  tariff  is  not  absolutely  necessary  for  levying 
taxes;  but  it  is  one  way  of  exercising  that  power,  therefore,  Con- 
gress has  power  to  impose  a  tariff  duty.  Again  the  Constitution 
gives  Congress  power  "  to  regulate  commerce."  Strictly,  this 
would  seem  to  mean  that  it  should  pass  only  such  laws  as  were 
absolutely  necessary  to  the  regulation  of  commerce,  such  as  laws 
compelling  the  registration  of  vessels,  prescribing  the  duties  of 
owners  and  seamen,  and  the  government  of  ports,  harbors,  and  the 
like.  '*  Yet,"  as  Mr.  Pomeroy  puts  it,  "  under  this  grant  Congress 
has  assumed  to  enact  laws  for  the  improvement  of  harbors,  the 
construction  of  piers,  the  erection  of  an  astronomical  observatory, 
the  conduct  of  a  coast  survey.  It  has  invaded  the  common  law  by 
limiting  the  liability  of  carriers  on  the  ocean  and  the  great  lakes, 
it  has  sent  out  expeditions  to  observe  an  eclipse,  and  to  explore  the 
topography  of  the  Dead  Sea."     Pomeroy  Const.  L.  1G6 


188  CONSTITUTIONAL    CASES    SIMPLIFIED. 


CHAPTER   II.  — THE  POWER   OF 
TAXATIOjS^. 


EXTENT  OF  THE  TAXING  POWER. 


PROVIDEXCE  BANK  v.  BILLINGS. 

[4  Pet.  5U.] 

In  the  year  1791  the  Rhode  Ishiiid  Legislature 
chartered  the  Providence  Bank  to  carry  on  the  bank- 
ing bnsiness  as  a  corporation  in  the  State.  In  1822 
the  Legishiture  passed  an  act  imposing  a  tax  on  every 
bank  in  the  State  except  the  United  States  Bank. 
The  Providence  Banlt  resisted  this  tax,  and  attempted 
to  show  the  Supreme  Court  of  the  United  States  that 
it  was  unconstitutional. 

.  "  The  State,"  argued  tlie  bank  hiwyer,  "  gave  us  a 
charter  to  carry  on  the  banking  business.  True,  no 
promise  was  made  in  tlie  charter  that  we  should  not 
be  taxed  ;  but  we  claim  that  it  wns  an  implied  contract 
that  it  would  pass  no  law  which  would  interfere  with 
our  operations.  Now,  if  the  State  may  tax  us,  it  may 
compel  us  to  close  our  doors,  for  it  may  tax  us  to 
such  an  extent  that  we  cannot  profitably  carry  on 
business  any  longer." 

"  So  it  may,"  answered  the  court,  "  for  such  is  the 
extent  of  the  taxing  power  of  a  State.  The  power  of 
taxing  operates  on    all  persons  and    property.     It  is 


CONSTITUTIONAL    CASKS    SIMPLiriKI).  1.S9 

granted  by  all  for  the  beneHt  of  all.  It  resides  in  the 
goveriiinentas  a  part  of  itself,  and  need  not  be  reserved, 
where  property  of  any  description,  or  the  right  to  use 
it  in  any  manner,  is  granted  to  individuals  or  corporate 
bodies.  Every  person  must  bear  his  portion  of  the 
public  burdens  ;  what  that  portion  shall  be  must  be 
determined  by  the  Legislature,  whose  discretion,  even 
when  abused,  cannot  be  corrected  by  the  courts." 
And  so  the  bank  had  to  pay  the  tax. 

Taxes,  as  some  philosopher  has  remarked,  are  the  penalties 
which  people  have  to  pay  for  being  too  fond  of  glory.  The  power 
to  tax  is  an  incident  of  sovereignty;  it  resides  in  every  govern- 
ment; for,  if  it  vpere  not  so,  no  government  could  exist  very  long, 
for  it  would  be  without  power  to  raise  money  for  its  own  mainten- 
ance. And  (with  some  exceptions,  which  will  be  stated  below), 
the  extent  of  its  exercise  is  unlimited;  if  the  government,  the 
people's  representatives,  decide  to  levy  a  tax,  the  amount  is  en- 
tirely in  their  discretion,  and,  no  matter  how  onerous  it  may  be,  there 
is  no  power  in  the  courts  to  help  a  citizen,  though  his  last  dollar 
maybe  taken  from  him  under  this  guise.  "  The  power  of  taxing 
the  people  and  their  property,"  said  the  greatest  of  American  Chief 
Justices,  "is  essential  to  the  very  existence  of  government,  and 
may  be  legitimately  exercised  on  the  objects  to  which  it  is  applic- 
able to  the  utmost  extent  to  which  the  government  may  choose  to 
carry  it.  The  only  security  against  the  abuse  of  this  power,  'is 
found  in  the  structure  of  the  goverment  itself.  In  imposing  a  tax. 
the  Legislature  acts  upon  its  constituents.  This  is  in  general  a 
sufficient  security  against  erroneous  and  oppressive  taxation.  T^e 
people,  therefore,  give  to  their  government  a  right  of  taxing  them- 
selves and  their  property ;  and  as  the  exigencies  of  the  government 
cannot  be  limited,  they  prescribe  no  limits  to  the  exercise  of  this 
right,  resting  confidently  on  the  interest  of  the  legislator,  and  on 
the  influence  of  the  constituents  over  their  representatives  to  guard 
them  against  its  abuse."  Marshall,  C,  J.,  in  McCulloch  v.  State 
of  Maryland,  4  Wheat.  428.  The  people  cannot  go  to  the  courts  to 
set  aside  the  obnoxious  tax;  but  they  have  after  all  an  easy 
remedy  —  when  the  next  election  comes  on  they  can  retire  their 
representatives  who  have  put  the  burden  on  them,  and  send  men  to 
the  Legislature  who  will  vote  for  its  repeal. 


190  CONSTITUTIONAL   CASES   SIMPLIFIED. 

The  exceptions  to  this  general  rule  are :  — 

I.  Where  the  Constitution  prescribes  a  limit  to  the  exercise  of 
the  power. 

II.  Where  the  tax  is  not  imposed  for  a  public  object. 

III.  Where  the  State  has  relinquished  its  right  by  contract. 

IV.  Where  the  property  is  beyond  its  jurisdiction. 

I.  Where  the  Constitution  prescribes  a  limit  to  the  exercise  of 
the  power.  The  people  have  not  always  been  willing  to  trust 
this  unlimited  power  to  the  government.  Therefore,  in  many 
of  the  State  Constitutions,  as  in  also  the  Constitution  of  the  United 
States,  it  is  prescribed  that  the  Legislature  shall  not  tax  beyond  a 
certain  amount,  or  only  for  certain  purposes.  If  the  government 
passes  a  law  conflicting  with  these  constitutional  limitations,  the 
courts,  in  a  case  of  the  kind  being  properly  brought  before  them, 
will  declare  the  law  void,  and  will  prevent  the  tax  from  being  col- 
lected. The  Constitution  of  the  United  States  contains  limitations 
on  both  the  powers  of  Congress  and  the  States  iu  respect  to  taxa- 
tion, viz. : — 

Art.  I.,  sect.  VIII.  "  Congress  shall  have  power  to  levy  and 
collect  taxes,  duties,  imposts,  and  excises,  to  pay  the  debts  and 
provide  for  the  common  defence  and  general  welfare  of  the 
United  States;  but  all  duties,  imposts,  and  excises  shall  be 
uniform  throughout  the  United  States. 

Art.  I.,  sect.  II.,  §  3.  "  Direct  taxes  shall  be  apportioned 
among  the  several  States  which  may  be  included  in  this  Union 
according  to  their  respective  numbers.  See  Hylton  v.  U.  S., 
post,  p.  194. 

Art.  I.,  sect.  IX.,  §  4.  "  No  capitation  or  other  direct  tax  shall 
,     be  laid,  unless  in  proportion  to  the   census  or   enumeration 
hereinbefore  directed  to  be  taken. 

Art.  I.,  sect.  IX.,  §  5.  "No  tax  or  duty  shall  be  laid  on  articles 
exported  from  any  State. 

Art.  I.,  sect.  IX.,  §  6.  "No  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue  to  the  ports  of  one  Stale 
over  those  of  another;  nor  shall  vessels  bound  to,  or  from  one 
State,  be  obliged  to  enter,  clear  or  pay  duties  in  another.  See 
Brown  v.  State  of  Maryland,  Almy  i\  State  of  California  and 
Woodruff  V.  Parham  jjost,  p.  197. 

Art.  I.,  sect.  X.,  §  1  "  No  State  shall,  without  the  consent  of 
Congress,  lay  any  imposts  or  duties  on  imports  or  exports,  ex- 


CONSTITUTIONAL    CASES    SIMPLIFIED.  11)  1 

cept  what  may  be  absolutely  necessary  for  executing  its  inspec- 
tion laws. 

Art.  I.,  sect.  X.,  §  3.  "  No  State  shall,  without  the  consent  of 
Congress,  lay  any  duty  on  tonnage." 

II.  Where  the  tax  is  not  imposed  for  a  public  object.  For  an  in- 
stance of  a  tax  of  this  kind,  see  Loan  Association  v.  Topeka,  post, 
p.  192. 

III.  Where  the  State  has  relinquished  its  rir/ht  hij  contract.  This 
principle  is  discussed  and  illustrated  in  the  subsequent  chapter  on 
Property  Rights. 

IV.  Where  the  property  is  befjond  its  jurisdiction.  "The  authority 
to  tax,"  it  has  been  said  by  the  Supreme  Court,  "extends  to  all 
persons  and  property  within  the  sphere  of  its  territorial  jurisdic- 
tion. *  *  *  But  where  there  is  jurisdiction  neither  as  to  person 
nor  property,  the  imposition  of  a  tax  would  be  ultra  vires  and  void. 
If  a  Legislature  of  a  State  should  enact  that  the  citizens  or  property 
of  another  State  or  county  should  be  taxed  in  the  same  manner  as 
the  persons  and  property  within  its  own  limits  and  subject  to  its 
authority,  or  in  any  other  manner  whatsoever,  such  a  law  would  be 
as  much  a  nullity  as  if  in  conflict  with  tlie  most  explicit  constitu- 
tional inhibition.  Jurisdiction  is  as  necessary  to  valid  legislative 
as  to  valid  judicial  action."  St.  Louis  v.  The  Ferry  Co.,  11  Wall. 
423. 


192  CONSTITUTIOXAL    CASES    SIMPLIFIED. 


TAX  MUST  BE  FOR  PUBLIC  PURPOSE. 


LOAN  ASSOCIATION  v.  TOPEKA. 

[20  Wall.  655.] 

The  City  of  Topekti,  Kaiisa.s,  obtained  authority  from 
the  Legishiture  to  issue  bonds  to  encourage  the  estab- 
lishment of  manufactures  within  its  limits.  An  iron 
works  company  attracted  by  these  inducements 
estal)li.shed  its  works  in  Topeka,  and  to  it  the  city 
issued  $100,000  of  bonds  as, a  bonus.  The  company 
began  to  look  upon  a  Kansas  city  as  a  pleasant  com- 
munity to  live  among ;  but,  alas,  everything  was 
changed  when,  an  action  being  brought  on  one  of  these 
bonds,  it  was  decided  that  the  law  under  which  they 
were  issued  was  unconstitutional.  The  court  said 
that  giving  the  city  power  to  donate  its  bonds  to 
manufactories,  was  the  same  as  giving  it  power  to  tax 
the  inhabitants  for  that  purpose,  for  only  by  a  tax  could 
the  bonds  be  paid.  But  a  valid  tax  must  be  imposed 
for  some  public  object  —  i.  e.  an  object  within  the 
purposes  for  which  governments  are  established.  The 
taxing  power  cannot,  therefore,  be  exercised  in  aid  of 
enterprises  strictly  private  for  the  benefit  of  individ- 
uals, although  in  a  remote  or  collateral  way  the  local 
public  may  be  benefited  thereby. 

To  justify  the  exercise  of  the  taxing  power  it  is  absolutely  neces- 
sary that  the  expenditure  which  it  is  intended  to  meet  shall  be  for 
some  public  service  or  some  object  which  concerns  the  public 
welfare.      That  the   public  will  be  incidentally  beuefited   is   not 


CONSTITUTIONAL    CASES    SIMl'LIFIED.  103 

enough,  especially  where  the  iacidental  beueflt  is  only  what  the 
public  may  receive  from  the  industry  and  enterprise  of  individuals. 
Loan  Association  v.  Topekais  a  good  example  of  a  tax  of  this  kind, 
and  two  cases  iu  the  State  courts  also  furnish  apt  illustrations  of 
what  are  not  public  purposes  within  this  rule.  The  great  tire  in 
Boston  in  1872,  caused  the  Legislature  of  Massachusetts  to  pass 
a  law  authorizing  the  City  of  Boston  to  issue  bonds,  and  lend  the 
proceeds  on  mortgage  to  the  owners  of  land,  the  buildings  on  which 
had  been  burned.  The  purpose  was,  of  course,  to  assist  the  suf- 
ferers in  rebuilding  on  their  land,  and  thus  to,  in  some  measure, 
benefit  the  whole  city.  Lowell  v.  Boston,  111  Mass.  455.  The 
grasshopper  having  pretty  well  cleaned  out  the  crops  in  Kansas  one 
year,  the  State  authorized  counties  to  issue  bonds  for  the  purpose 
of  providing  destitute  farmers  with  seed  for  the  next  sowing. 
State  V.  Osawkee  Township,  U  Kas.  418.  But  the  Boston  property 
holders  had  to  find  their  money  elsewhere,  and  the  Kansas  farmers 
had  to  buy,  beg  or  borrow  their  seeds ;  for  both  statutes  were 
declared  void. 


194  CONSTITUTIONAL    CASES    SLMTLIFIED. 


WHA  T  ARE   "  DIRE  C  T  TAXES. ' ' 


HYL.TON  V.  UNITED  STATES. 

[SDall.  171.] 

Exactly  what  Mr.  Hyltou,  of  Virginia,  found  to  do 
witii  one  hundred  and  twenty-five  carriages  (which  the 
report  says  he  kept  "  exclusively  for  his  own  separate 
use  and  not  to  let  out  to  hire  or  for  the  conveyance  of 
persons  for  hire")  is  a  query  which  it  is  hard  to 
answer,  except  on  the  theory  that  he  was  the  proprie- 
tor of  a  circus.  Just  one  year  before,  Congress  had 
laid  a  tax.  of  $10  on  all  carriages  in  the  United  States, 
and  consequently  Mr.  Hylton  found  that  keeping  one 
hundred  and  twenty-five  carriages  was  more  of  a 
luxury  than  he  could  pay  for,  and  he  attempted  to  dis- 
pute the  legality  of  the  tax  in  the  courts. 

He  relied  on  a  section  of  the  Constitution  which  says 
that  "  direct  taxes  shall  be  apportioned  among  the 
severalStates  according  to  their  respective  numbers," 
and  he  claimed  that  this  carriage  tax  was  a  "  direct 
tax."  But  the  Supreme  Court  of  the  United  States 
thought  otherwise.     "The  direct  taxes  contemplated 


CONSTITUTIONAL   CASES    SIMPLIFIED.  1  Do 

by  the  Constitution,"  said  Mr.  Justice  Chase,  "  ure 
only  two,  viz.  :  a  capitation  or  poll  tax  simply,  without 
regard  to  property,  profession  or  other  circumstance, 
and  a  tax  on  land. 

The  word  "  taxes  "  embraces  all  the  impositions  made  upon  the 
person,  property,  occupation  or  privileges  of  the  people  by  the 
government  for  the  purpose  of  raising  revenue.  "  Duties  "  and 
"imposts  "  are  within  the  term,  but  for  greater  particularity  they 
are  generally  applied  to  the  sums  of  money  demanded  by  the  gov- 
ernment for  the  privilege  of  importing  or  exporting  merchandise. 
"  Excises  "  are  also  "  taxes,"  but  this  word  is  applied  to  the  taxes 
laid  upon  the  manufacture,  sale  or  consumption  of  commodities 
within  the  country,  and  upon  licenses  to  pursue  certain  occu- 
pations. 

As  the  words  are  generally  used,  taxes  are  "  direct  "  when  they 
are  assessed  upon  the  persons,  property,  business  or  income,  etc., 
of  the  people,  and  are  "indirect"  when  they  are  levied  on  com- 
modities before  they  reach  the  consumer,  and  are  paid  by  him 
only  as  he  pays  a  higher  price  for  them  than  he  would  if  there 
were  no  tax.  The  former,  if  he  comes  within  its  terms,  the  citi- 
zen cannot  get  out  of  paying;  the  latter  he  may  escape,  if  he 
wishes,  by  abstaining  from  using  the  articles  which  have  been 
taxed. 

Hylton  V.  United  States  decides  that  the  phrase  "  direct  taxes  " 
in  the  Constitution  has  a  more  restricted  meaning:  that  it  includes 
only  two  kinds  of  taxes,  (1)  a  tax  on  land;  (2)  a  capitation  or 
poll  tax,  i.e.,  a  fixed  sura  of  money  to  be  paid  by  each  person,  with- 
out reference  to  his  property  or  business.  Therefore,  if  Congress 
was  to  wish  to  levy  either  of  these  kinds  of  taxes,  it  would  have  to 
first  fix  the  whole  amount  of  money  to  be  raised  in  this  manner, 
and  then  divide  it  among  all  the  States  in  proportion  to  the  number 
of  inhabitants  in  each.  As  this  would  be  a  work  involving  a  great 
deal  of  calculation  and  adjustment,  Congress  has  never  yet  tried 
this  method  of  taxing,  though  in  two  cases  since  Hylton  v.  United 
States  was  decided,  it  was  contended  that  an  income  tax,  and  a  tax 
on  the  circulation  of  banks,  which  the  Federal  government  had 
levied,  were  "  direct  taxes,"  and  ought  to  have  been  apportioned 
among  the  States.     Pacific  Ins.  Co.  v.  Soule,  7  Wall.  433 ;  Veazie 


19G  CONSTITUTIONAL    CASES    SIMPLIFIED. 

Bank  v.  Fenno,  8  Wall.  533.  But  the  Supreme  Court  held  that 
neither  of  them  was  within  the  phrase  as  used  in  the  Constitu- 
tion, adhering  to  its  definition  of  a  <' direct"  tax  in  the  Car- 
riage ease. 


CONSTITUTIONAL    CASES    SIMPLIFIED.  197 


STATE  DUTIES  ON  IMPORTS. 


BROWN  V.  STATE  OF  MARYLAND. 

[12  Wheat.  419.] 

A  statute  of  Maryland  required  all  importers  of 
foreign  goods  by  the  bale,  package,  etc.,  and  all  other 
persons  selling  the  same  by  wholesale,  bale,  package, 
etc.,  to  take  out  a  license  for  which  they  were  charged 
$50,  and  prescribed  a  penalty  for  neglect  to  do  so.  A 
Baltimore  merchant  named  Brown  imported  and  sold  a 
package  of  foreign  dry  goods  without  having  taken 
out  a  license,  and  he  was  prosecuted  under  the  act. 
His  defence  was  that  the  statute  was  unconstitutional, 
because  it  violated  the  provision  prohibiting  a  State 
from  levying  "  any  imposts  or  duties  on  imports  or  ex- 
ports." 

Brown  won  his  case  ;  the  statute  was  declared  void. 
An  imported  article,  the  court  held,  continues  to  be 
part  of  the  foreign  commerce  of  the  country  while  it 
remains  in  the  hands  of  the  importer  for  sale  in  the 
original  bale  or  package  in  which  it  was  imported. 
The  right  of  the  citizen  to  import  necessarily  implies 
the  right  to  sell  the  article  in  the  form  and  sliape  in 
which  it  was  imported,  and  no  State,  either  by  a  direct 
tax  on  the  article,  or  by  requiring  a  license  from  the 
importer  before  he  is  permitted  to  sell,  can  impose  any 


198  CONSTITUTIONAL    CASES    SIMPLIFIED.  / 

burden  upon  him  or  the  property  beyond  what  Con- 
gress has  imposed  by  its  tarift'  laws. 

But  an  imported  article  becomes  subject  to  the  taxing  power  of 
the  State  when  the  original  package  is  broken  open  for  use  or  for 
sale  in  parts,  or  when  it  has  passed  from  the  hands  of  the  importer 
into  those  of  a  purchaser.     It  then  ceases  to  be  an  "import." 


CONSTITUTIONAL    CASES    SIMPLIFIED.  199 


STATE  DUTY  ON  ''EXPORTS." 


ALMY  V.  STATE  OF  CALIFORNIA. 

[24  How.  1G9.] 

A  statute  of  California  imposed  a  stamp  tax  on  all 
bills  of  lading  of  gold  and  silver  exported  from  the 
State.  Almy,  the  master  of  the  ship  Rattler,  received 
a  quantity  of  gold  in  the  port  of  San  Francisco  for 
transportation  to  New  York,  for  which  he  signed  a  bill 
of  lading  without  attaching  a  stamp.  The  law  made 
this  a  misdemeanor,  and  he  was  indicted  and  fined 
$100  for  the  offence.  But  he  appealed  to  the  Supreme 
Court  of  the  United  States,  where  he  was  discharged 
and  the  fine  set  aside. 

It  was  a  tax  on  "  exports,"  said  the  court.  It  was 
the  same  as  though  the  tax  had  biecn  on  the  gold  itself, 
for  the  bill  of  lading  is  as  necessary  to  the  transport;;- 
tion  of  goods,  as  casks  or  boxes, —  it  is  the  ship's  receipt 
for  the  articles  received,  without  which  no  one  would  in- 
trust his  o-oods  to  a  carrier,  "  The  intention  to  tax  the 
export  of  gold  and  silver  in  the  form  of  a  tax  on  the  bill 
of  lading  is  too  plain  to  be  mistaken.  The  duty  is  im- 
posed only  upon  bills  of  lading  of  gold  and  silver,  and 
not  upon  articles  of  any  other  description.  And  we 
think  it  is  impossible  to  assign  a  reason  for  imposing 
the  duty  upon  the  one  and  not  upon  the  other,  unless 
it  was  intended  to  lay  a  tax  on  the  gold  and  silver  ex- 
ported, while  all  other  articles  were  exempted  from  the 
charofe." 


200  CONSTITUTIONAL    CASES    SIMPLIFIED. 

WOODRUFF    V.  PARHAM. 

[8  Wall.  123.] 

Mobile,  also,  about  the  year  18(j5,  being  authorized 
by  its  charter,  levied  a  tax  on  all  sales  at  auction. 
An  auctioneer  named  Woodruff  received  from  States 
other  than  Alabama  large  amounts  of  goods  and  mer- 
chandise, which  he  sold  in  Mobile  to  purchasers  in 
their  original  and  unbroken  packages.  Parham,  the 
city  tax  collector,  demanded  the  tax  on  these  sales  ;  i)ut 
the  auctioneer  refused  them  and  had  to  be  sued.  In 
the  Supreme  Court,  Woodruff  contended  that  the  tax 
was  unconstitutional  for  the  reasons  stated  in  Brown 
V.  Mayland.  But  the  court  upheld  the  tax,  on  the 
ground  that  the  word  "  imports"  in  this  clause  of  the 
Constitution  referred  only  to  articles  imported  from 
foreign  countries  into  the  United  States,  and  not  to 
goods  imported  from  one  State  into  another. 

Woodruff  ('.  Parham,  while  agreeing  with  Alray's  case  on  one 
point,  is  in  conflict  with  it  on  another.  "  It  seems  to  have  escaped 
the  attention  of  counsel  on  both  sides  in  Alray's  case,  and  of  the 
Chief  Justice  in  delivering  the  opinion,"  says  Mr.  Justice  Miller 
in  Woodruff  v.  Parham,  "that  the  case  was  one  of  inter-state 
commerce.  No  distinction  of  the  kind  is  taken  by  counsel,  none 
alluded  to  by  the  court,  except  in  the  incidental  statement  of  the 
^ermmi  of  the  voyage.  *  *  *  The  only  question  discussed  by  the 
court  is  whether  the  bill  of  lading  was  so  intimately  connected 
with  the  articles  of  export  described  in  it  that  a  tax  on  it  was  a 
tax  on  the  articles  exported.  And  in  arguing  this  proposition  the 
Chief  Justice  says  that  '  a  bill  of  lading  or  some  equivalent  instru- 
ment of  writing  is  invariably  associated  with  every  cargo  of  mer- 
chandize exported  to  a  foreign  county,  and  consequently  a  duty 
upon  that  is  in  substance  and  effect  a  duty  on  the  article  exported.' 
It  is  impossible  to  examine  the  opinion  without  perceiving  that  the 
mind  of  the  writer  was  exclusively  directed  to  foreign  commerce, 


CONSTITUTIONAL    CASES    SIMI'LIFIED.  201 

and,  there  is  no  reason  to  suppose  that  the  question  whicli  we  ]ia\  «• 
discussed  was  in  his  thought."  The  court,  therefore,  has  overruled 
Alray's  case  so  far  as  it  held  that  articles  exported  from  one  State 
to  another  were  "  exports  "  within  the  Constitution. 


202  CONSTITUTIONAL    CASES    SIMPLIFIED. 


^^' 


(/^ 


STATES     CANNOT   TAX    FEDERAL    AGENCIES. 
i    »  _ 

Mcculloch  v.  the  state  of  Maryland. 

[4  Wheat.  31G.] 


The  opposition  to  the  United  States  Baiik^  took  vari- 
ous shapes.  The  bank  had  a  branch  at  Baltimore.  The 
State  of  Maryland  passed  a  hiw  which  had  the  effect  of 
levying  a  tax  on  every  note  issued  by  the  bank  within 
the  State.  Mr.  McCullough,  who  was  the  cashier  of 
the  Baltimore  branch,  refused  to  obey  this  law,  and 
being  sued  by  the  State  for  the  penalty,  judgment  was 
recovered  against  him,  which  judgment  was  affirmed 
by  the  Maryland  Court  of  Appeals.  Then  the  case 
was  taken  to  the  Supreme  Court  of  the  United  States, 
in  which  tribunal  the  State  law  was  declared  uncon- 
stitutional and  void.  The  court  held  that  the  sover- 
eign power  of  a  State  extends  to  everything  which 
exists  by  its  authority  or  is  introduced  by  its  permis- 
sion, but  does  not  extend  to  those  means  which  are 
employed  by  Congress  to  carry  into  execution  the 
powers  conferred  on  the  National  government.  If  the 
State  could  tax  these  government  agencies  it  might  de- 
stroy them,  for  it  might  tax  them  to  such  an  extent  as 
to  prevent  their  operation.. 


'  See  ante,  p.  185. 


CONSTITUTION  A  r.    CASKS    SIMPLIFIED.  203 

DOBBINS  V.    COMMISSIONERS   OF   EKIE       ^^       , 

COUNTY.  ,^'^  S   ,    -.'Vv   / 

[10  Pet.  435.] 

Captain  Dobbins,  of  tlie  United  States  revenue 
cutter,  lying  at  the  station  at  Erie,  Pennsylvania,  was 
notified  by  the  county  assessor  one  day,  that  there  was 
a  matter  of  $10.75  due  from  him  to  the  county,  by 
virtue  of  a  statute  of  Pennsylvania  which  authorized 
the  levying  of  a  county  tax  on  all  "  offices  and  posts 
of  profit,"  for  that  the  Captain's  post  was  one  of 
profit,  was  sufficiently  clear  to  the  tax-collector.  But 
Captain  Dobbins  refused  to  pay,  and  the  next  thing 
that  we  hear  of  him  is  as  a  successful  appellant  in  the 
Supreme  Court  of  the  United  States,  where  the  judg- 
ment was  against  the  validity  of  the  statute. 

The  reason  of  the  tax-collector's  defeat  is  very  brief. 
An  officer  of  the  United  States  is  a  government  instru- 
ment ;  and  a  government  instrument,  as  was  decided 
in  McCullough  v.  State  of  Maryland,  cannot,  as  such,  be 
taxed  by  a  State. 


WESTON  V.   CITY  COUNCIL    OF    CHARLESTON. 

[2  Pet.  44!).] 

The  city  council  of  Charlest()u,  South  Carolina,  in 
the  year  1823,  with  authority  from  the  State  Legisla- 
ture, levied  a  tax  on  all  personal  estate,  including 
stocks  of  the  United  States.  Mr.  Weston,  who  was 
the  owner  of  some  United  States  stock,  was  assessed 
thereon.     But  not  a  cent  of  tax  had  he  to  pay,  for  the 


'  -r 


204  CONSTITUTIONAL    CASES    SIMPLIFIED. 

court  decided  that  stocks  of  the  United  States,  owned 
by  private  persons  or  corporations,  cannot  be  taxed 
by  a  State.  The  National  government  is  given  bv 
the  Constitution  the  power  to  borrow  money ;  the 
States,  therefore,  cannot  prevent  or  interfere  in  any 
way  with  the  exercise  of  this  power.  But  to  tax  the 
evidences  of  tlie  National  debt  in  the  hands  of  the 
owners,  would  interfere  with  its  power  to  borrow 
money,  for  it  would  diminish  their  value,  and  thus  make 
it  harder  for  the  ijovernment  to  find  ijersons  willino-  to 
loan  it  their  money. 


CRANDALL  v.   STATE  OF  NEVADA. 

[6  Wall.  35  i 

A  statute  of  Nevada  imposed  a  tax  of  $1  on  every 
person  leaving  the  State  by  any  railroad,  stage-coach, 
or  other  public  vehicle.  The  tax  was  to  be  paid  by  the 
carriers,  and  they  were  required,  under  a  penalty,  to 
report  monthly  the  number  of  persons  so  transported. 
Crandall,  who  was  the  agent  of  a  stage  company, 
refused  to  report  or  to  pay  the  tax,  and  being  brought 
before  a  State  court  was  fined.  But  he  appealed  to 
the  Supreme  Court  of  the  United  States,  where  the 
statute  was  held  void.  "  The  United  States,"  said  the 
court,  "has  the  right  to  call  for  the  services  of  its  citi- 
zens at  all  points  throughout  the  country,  and  to  trans- 
port its  troops  anywhere.  Citizens  have  the  right  to  go 
to  the  seat  of  government,  and  to  all  other  places  where 
Federal  offices  are  situated,  and  to  ports  of  entry,  as 
the  necessities  of  their  business  may  require.  If  the 
State  could  tax    this  privilege  at  all,  it  could  tax  it 


CONSTITUTIONAL    CASKS    SIMPLIFIED.  205 

to  such  an  extent  us  to  render  it  inipossil)le  to  ex- 
ercise it." 

These  cases  firmly  establish  the  principle  that  the  power  of  a 
State  to  tax  cannot  be  exercised  upon  property  of  the  National 
government,  or  upon  means  which  that  government  has  adopted 
to  carry  on  its  public  affairs.  As  the  amount  which  a  State  may 
raise  by  taxation,  cannot,  as  we  have  seen,  be  prescribed  or  lim- 
ited by  the  courts,  — but  the  State  is  supreme  in  this  matter  unless 
restricted  by  its  Constitution,  —  if  it  were  once  conceded  that  the 
National  property  or  agencies  were  a  proper  subject  of  the  taxing 
power,  that  power  might  be  exercised  to  the  complete  destruction 
of  both,  * 


200  CONSTITUTIONAL    CASKS    SIMrLIFIED. 


UNITED    STATES    CANNOT  TAX  STATE 
AGENCIES. 


COLLECTOR  v.  DAY. 

[11  Wall.  113.] 

In  1864  it  was  enacted  by  Congress  that,  on  all  the 
incomes  above  $1,000,  of  persons  residing  in  the  United 
States,  there  should  be  levied  and  collected  a  tax  of 
five  per  cent.  Among  those  who  were  assessed  under 
this  law  was  Judge  Day,  of  the  Probate  Court  of 
Barnstable,  Massachusetts,  and,  although  he  paid  the 
tax,  he  paid  it  under  protest,  and  brought  an  action 
against  the  collector  to  recover  it  back,  on  the  ground 
that  his  income  which  was  taxed  was  his  salary  as  a 
State  officer,  and  that  the  United  States  had  no  more 
right  to  tax  his  salary  than  the  State  of  Pennsylvania 
had  to  tax  Captain  Dobbins'  and  for  similar  reasons. 
The  Supreme  Court  said  he  was  right  in  his  law,  and 
ordered  the  collector  to  refund  him  his  money. 

Tins  case  is  very  important  as  deciding  that  the  doctrine  that  the 
States  may  not  lay  taxes  upon  the  instrumentalities  and  agencies  of 
the  nation  (see  McCullogh  v.  Maryland,  ante  p.  202,  and  cases  seq.) 
applies  in  the  same  manner,  to  the  same  extent,  and  for  the  same 
reason,  to  the  exercise  of  the  taxing  power  of  the  United  States. 
Congress  cannot  lay  a  tax  upon  any  of  the  agencies  or  instrumen- 
talities which  are  necessary  or  appropriate  for  the  legitimate  gov- 
ernmental acts  and  operations  of  the  States. 

Previous  to  this  decision  the  principle  had  been  much  debated  in 
the  State  courts.  Several  years  ago  Congress  laid  a  stamp  tax  on 
written  instruments,  and  among  them  papers  used  in  judicial  pro- 
ceedings.   The  law  provided  that  if  a  revenue  stamp  of  a  certain 


CONSTITUTIONAL    CASES    SIMPLIFIED.  2U7 

value  was  not  affixed  as  required,  the  paper  laeking  such  stamp 
should  not  be  used  in  the  suit  or  in  the  course  of  the  proceeding. 
When  it  was  sought  to  apply  this  law  to  papers  filed  or  used  in 
evidence  in  the  course  of  proceedings  in  State  courts,  the  State 
courts  pronounced  the  law  void  so  far  as  it  extended  to  them,  on 
the  ground  that  Congress  could  not  interfere  in  this  way  with  the 
administration  of  justice  in  a  State.  Warren  v.  Paul,  2-2  Ind.  27C>. 
The  law  was  repealed  and  the  question  never  reached  the  Federal 
Supreme  Court,  but  the  subsequent  case  of  Collector  v.  Day  shows 
that  if  it  had,  the  views  of  the  State  courts  would  have  been  sus- 
tained. 


208  CONSTITUTIONAL    CASES    SIMPLIFIED. 


DUTY  OF  TONNAGE. 


CAJSTS^ON  V.  NEW  ORLEANS. 

[20  Wall.  577.] 

All  ordinance  of  the  City  of  New  Orleans  required 
to  be  paid  as  "  levee  dues,"  by  all  steamboats  which 
should  moor  or  land  in  any  part  of  the  port,  ten  cents" 
per  ton,  if  the  boat  were  in  port  not  exceeding  five 
days,  etc.  The  owner  of  the  steamboat  R.  E.  Lee  re- 
fused to  pay  the  dues,  and  appealed  to  the  Supreme 
Court  of  the  United  States,  where  the  ordinance  was 
declared  void  as  being  a  "  duty  of  tonnage," 


PACKET  COMPANY  v.  KEOKUK. 

[5  Otto,  80.] 

At  a  considerable  expense,  the  City  of  Keokuk,  Iowa, 
had  built,  paved  and  improved  the  banks  of  the  Mis- 
sissippi within  its  limits,  and  had  erected  wharves  for 
the  convenience  of  vessels  landing  there.  For  the  use 
of  these  wharves,  the  city  (under  authority  from  the 
State),  declared  that  every  vessel  that  should  make  fast 
to  them,  or  receive  or  discharge  passengers  or  freight 
thereon,  should  pay  certain  fees  graduated  by  the  ton- 
nage of  the  vessel.  The  boats  of  the  Packet  Com- 
pany which  ran  on  the  river  and  used  the  city's 
wharves,  refused  to  pay  these  fees,  and  on  being  sued 
for  them,  claimed  that  they  were  "  duties  of  tonnage," 


CONSTITUTIONAL    CASES    SIMrLIFIED.  209 

and  therefore  (as  held  in  Cannon  v.  New  Orleans)  be- 
yond the  power  of  the  State  to  impose. 

But  the  court  decided  that  the  fees  were  demanded 
for  services  rendered,  viz.  :  providing  the  boats  with 
wharves,  and  were  valid  and  collectible. 

Section  10,  Art.  I.,  of  the  Constitution  declares  that  "  no  State 
shall,  without  the  consent  of  Congress,  lay  any  duty  of  tonnage." 
It  is,  therefoi-e,  not  competent  for  a  State  or  State's  agent  (e.  g.  a 
municipal  corporation)  to  levy  dues  upon  vessels,  measured  by 
their  capacity,  or  to  impose  any  duties  upon  them  for  the  privilege 
of  entering  or  remaining  in  or  leaving  a  port.  This  is  the  general 
rule ;  yet  there  are  two  ways  in  which  levies  may  be  made  on  ves- 
sels by  a  State,  viz. : 

1.  Where  the  levy  is  for  special  services  rendered.  "A  charge  for 
services  rendered,"  said  Mr.  Justice  Strong,  in  the  Packet  Company 
case,  "  or  for  conveniences  provided  is  in  no  sense  a  tax  or 'a  duty. 
It  is  not  a  hinderance  or  impediment  to  free  navagation.  The  pro- 
hibition to  the  State  against  the  imposition  of  a  duty  of  tonnage 
was  designed  to  guard  against  local  hinderances  to  trade  and  car- 
riage by  vessels,  not  to  relieve  them  from  liability  to  claims  for 
assistance  rendered  and  facilities  furnished  for  trade  and  com- 
merce. It  is  a  tax  or  duty  that  is  prohibited;  something  imposed 
by  virtue  of  sovereignty  not  claimed  in  right  of  proprietorship. 
Wharfage  is  of  the  latter  character.  Providing  a  wharf  to  which 
vessels  may  make  fast  or  at  which  they  may  conveniently  load  or 
unload  is  rendering  them  a  service.  The  character  of  the  service 
is  the  same  whether  the  wharf  is  built  and  offered  for  use  by  a 
State,  a  municipal  corporation,  or  a  private  individual;  and  when 
compensation  is  demanded  for  the  use  of  the  whai'f,  the  demand  is  an 
assertion,  not  of  sovereignty,  but  of  a  right  of  property.  A  passing 
vessel  may  use  the  wharf  or  not  at  its  election,  and  thus  may  incur 
liability  for  wharfage  or  not  at  the  choice  of  the  master  or  owner. 
No  one  would  claim  that  a  demand  of  compensation  for  the  use  of 
a  dry  dock  for  repairing  a  vessel,  or  a  demand  for  towage  in  a 
harbor,  would  be  a  demand  of  a  tonnage  tax,  uo  matter  whether 
the  dock  was  the  property  of  a  private  individual  or  of  a  State,  and 
no  matter  whether  proportioned  or  not  to  the  size  or  tonnage  of 
the  vessel.  There  is  no  essential  difference  between  such  a 
demand  and  one  for  the  use  of  a  wharf."  Right  here  is  the  dif- 
ference between   Cannon's   case  and  the   Packet  Company's  case. 


210  CONSTITUTIONAL    CASES    SI.MPLIFIKD. 

The  charge  in  the  first  was  made  by  the  City  of  New  Orleans,  for 
stopping  in  the  harbor,  even  though  no  wharf  was  used  ;  while  the 
tax  which  Keokuk  collected  was  for  using  wharves  which  the  city 
had  erected  at  great  expense.  The  former  was  void,  the  latter 
valid. 

2.  Wliere  the  levy  is  a  tax  on  property  as  other  property  is  taxed  in 
the  State.  Property  in  ships  and  vessels  is  like  all  other  property, 
and  is,  therefore,  subject  to  be  taxed.  Therefore  the  State  may 
tax  the  owners  of  vessels  on  their  interests  in  them  as  property  by 
the  same  standard  employed  in  other  cases.  But  it  is  essential 
(as  we  have  seen,  ante  p.  191)  that  the  vessels  shall  have  their 
situs  within  the  State  that  taxes  them.  There  was  a  ferry  company 
whose  boats  carried  goods  and  passengers  across  the  Mississippi 
river  from  East  St.  Louis,  which  is  in  Illinois,  to  the  City  of  St. 
Louis,  which  is  in  Missouri.  The  company  was  an  Illinois  corpora- 
tion; its  boats  were  laid  up  when  not  in  use,  and  its  pilots  and 
engineers  resided,  on  the  Illinois  side  of  the  river.  It  was  held  that 
the  State  of  Missouri  could  not  tax  these  ferry-boats.  St.  Louis  v. 
The  Ferry  Company,  11  Wall.  423. 


CONSTITUTIONAL   CASES    SIMPLIFIED.  211 


CHAPTER  III.  — THE  POWER  TO 
BORROW  MONEY. 


''BILLS  OF  credit: 


CRAIG  V.  THE  STATE  OF  MISSOURI. 

[4  Pet.  410.] 

In  1821  the  Legislature  of  Missouri  authorized  the 
State  Treasury  to  issue  certificates  to  the  amount  of 
$200,000,  in  denominations  not  exceeding  ten  dollars 
nor  less  than  fifty  cents.  These  were  subsequently 
issued,  and  were  in  the  following  form  :  — 

"This  certificate  shall  be  receivable  at  the  treasury  of  any  of  the 
loan  offices  in  the  State  of  Missouri,  in  discharge  of  taxes  or  debts 

due  to  the  State  for  the  sum  of dollars,  with  interest  for  the 

same  at  the  rate  of  two  per  centum  per  annum  from  this  date." 

Some  of  these  certificates  the  Treasury  issued  to 
Craig  and  others,  who  gave  their  promissory  note  to  the 
State  for  the  amount.  When  the  note  fell  due,  they 
did  not  pay  it,  and  on  being  sued  they  pleaded  that 


212  CONSTITUTIONAL    CASES    SIMPLIFIED. 

the  consideration  was  void  because  the  certificates 
were  void,  being  "  bills  of  credit  "  which,  by  the  Con- 
stitution, the  States  are  prohibited  from  issuing.  In 
the  Supreme  Court  of  the  United  States  it  was  held 
that  the  certificates,  even  though  they  were  not  made 
a  legal  tender,  or  directed  to  pass  as  money  or  cur- 
rency, were  "  bills  of  credit,"  and  consequently 
void. 


BRISCOE     V.    THE     BANK     OF    THE    COMMON- 
WEALTH OF  KENTUCKY. 

[11  Pet.  257.] 

The  Leo;islature  of  Kentuckv,  in  1820,  established 
the  Bank  of  the  Commonwealth  of  Kentucky  in  the 
name  and  behalf  of  the  Commonwealth  and  the  insti- 
tution was  declared  to  be  exclusively  the  property  of  the 
Commonwealth.  The  president  and  directors  were  to 
be  chosen  by  the  Legislature,  and  the  bank  was 
authorized  to  issue  notes  which  were  to  be  receivable 
in  payment  of  debts  to  the  State.  One  day,  in  1830, 
Briscoe  and  some  others  induced  the  bank  to  discount 
their  note  for  something  over  $2,000  at  four  months, 
receiving  the  amount  in  bills  of  the  bank.  The  four 
months  went  by,  the  three  days  of  grace  expired,  with- 
out the  note  being  met,  and  the  directors  were  obliged 
to  bring  suit  on  it.  Briscoe  and  his  co-makers  made 
the  same  defence  that  Mr.  Craio;  did  in  his  contest  with 


COXSTITUTIOXAL    CASES    SIMPLIFIKD.  21  o 

the  State  of  Missouri;  they  said  that  the  bills  which 
they  had  received  were  *'  bills  of  credit  "  of  the  State 
and  void. 

But  they  were  not  as  lucky  as  Mr.  Craig,  for,  al- 
though INIr.  Justice  Story  agreed  with  them,  the  rest 
of  the  court  held  that  the  notes  of  the- bank  were  not 
''bills  of  credit."  The  bank  and  the  State,  they  said, 
were  distinct ;  the  notes  were  issued  by  the  former 
upon  its  credit,  alone,  and  could  only  be  enforced 
against  it  ;  they  were  not  issued  by  the  State  and  con- 
tained no  pledge  of  the  State's  credit.  Mr.  Justice 
Story  took  the  very  sensible  view  that  what  the  State 
could  not  do  directly,  it  should  not  be  allowed  to  do 
indirectly  by  means  of  an  institution  created  by  itself, 
but  the  other  six  judges  could  not  see  it  in  this 
light. 

By  Article  I,  sect.  10,  of  the  Constitution,  it  is  provided  that  no 
State  shall  "  coin  money  cr  emit  bills  of  credit."  The  object  of 
the  prohibition  against  coining  money  was,  of  course,  to  have  a 
uniform  currency,  which  could  only  be  accomplished  by  giving  Con- 
gress the  sole  power  to  regulate  the  currency.  The  prohibition 
against  emitting  bills  of  credit  grew  out  of  the  unpleasant  experi- 
ence which  the  Constitutional  Convention  had  had  in  the  matter 
of  colonial  bills  of  credit,  and  it  did  not  intend  that  each  State 
should  have  the  right  to  put  in  circulation  its  paper  obligations  to 
be  perhaps  depreciated  and  finally  dishonored. 

It  is  plain  that  the  phrase,  "bills  of  credit,"  is  broad  enough  to 
include  all  written  contracts  by  which  a  State  binds  itself  to  pay 
money  at  a  future  day  in  consideration  of  services  rendered  or 
loans  made.  But  a  more  restricted  interpretation  has  been  given 
to  these  words  in  the  Constitution,  otherwise  no  State  would  have 
power  to  issue  bonds,  or  any  evidences  of  debt.  "  Bills  of  credit," 
as  used  in  the  Constitution,  are  bills  issued  bj  the  State,  involving 
the  faith  of  the  State  and  designed  to  circulate  as  money  in  the 
ordinary  course  of  business.    As  seen  in  Craig  v.  State  of  Missouri, 


214  CONSTITUTIONAL    CASES    SIMFLIFIKD. 

it  is  not  necessary  that  the  State  should  declare  them  to  be  mouej% 
or  to  be  a  legal  tender.  But  the  State  may  charter  a  bank  and  em- 
power it  to  issue  bills,  as  was  laid  down  in  Briscoe's  case,  supra. 


CONSTITUTIONAL    CASES    SIMI'LIFIKD.  215 


CHAFER  ly.  — THE  POWER  TO 
REGULATE  COMMERCE. 


COMMERCE  CANNOT  BE  REGULATED  BY  THE 
STATES. 


GIBBOXS   V.    OGDEN.' 

[9  Wheat.  1.] 

As  some  small  reward  for  his  services  in  bringing 
the  steamboat  into  practical  use,  the  State  of  New 
York,  by  a  statute  of  its  Legislature,  gave  to  Robert 
Fulton  and  his  associates,  the  exclusive  right  to  navi- 
o-ate  all  waters  within  the  jurisdiction  of  the  State  with 
vessels  propelled  by  steam,  for  a  term  of  years.  Not- 
withstandino^  this  statute,  one  Gibbons  ran  a  steamboat 
owned  by  him  between  New  York  City  and  Elizabeth- 
port,  New  Jersey,  which  steamboat  had  been  duly  en- 
rolled and  licensed  as  a  coasting  vessel  under  the  act 
of  Congress  regulating  the  coasting  trade.  Ogden, 
-who  was  the  assignee  of  Fulton's  rights  under  the 
New  York  statute,  applied  to  the  State  court  of  New 
York  and  obtained  from  there  an  injunction  restraining 
Gibbons  from  runnino;  his  steamboat. 


216  CONSTITUTIONAL    CASES    SIMPLIFIED. 

Gibbons  appealed  to  the  United  States  Supreme 
Court,  and  the  statute  was  deckired  unconstitutional. 
It  was  a  "  regulation  of  commerce,"  said  the  court, 
and  beyond  the  powers  of  a  State. 


THE  PASSENGER   CASES. 
[7  How.  283.] 

These  were  two  cases  —  Smith  v.  Turner  and  Norris 
V.  City  of  Boston,  —  which  arose  in  New  York  and 
Massachusetts  respectively.  A  statute  of  New  York 
provided  that  the  health  officer  of  the  port  of  New 
York  should  be  entitled  to  demand,  sue  for  and  re- 
cover from  the  master  of  every  vessel  that  should 
arrive  at  that  port  certain  sums  for  every  steerage  pas- 
senger brought  by  the  vessel  from  a  foreign  country, 
or  from  another  State.  The  moneys  thus  received 
were  to  l)e  applied  towards  the  support  of  a  marine 
hospital,  and  masters  of  vessels  were  subjected  to  pen- 
alties for  failing  to  make  the  prescribed  payments.  A 
Massachusetts  statute  was  similar  in  its  general  fea- 
tures. Smith  was  sued  in  New  York,  and  Norris  in 
Massachusetts,  for  violating  these  laws  ;  and  the  de- 
fence in  both  cases  was  that  the  statutes  were  ' '  regu- 
lations of  commerce,"  and  void. 

The  Supreme  Court  declared  the  statutes  unconstitu- 
tional and  sustained  the  defence. 


CONSTITUTIONAL    CASES    SIMPLIFIED.  217 


STATE  OF   PEXX8YLVAXIA  v.  THE  AVHEELIXG 
BRIDGE   COMPAXY. 

[13  How,  518.] 

The  Wheeling  Bridge  Compuiiy  were  authorized  by 
the  State  of  Virginia  to  coustiuct  a  suspension  l)ridge 
across  the  Ohio  River.  When  the  bridge  was  com- 
l^leted  it  was  found  that  it  hindered  the  passage  of 
boats  ascending  and  descending  the  river,  and  at  cer- 
tain stages  of  water  entireh'  prevented  the  transit  of 
large  boats.  The  State  of  Pennsylvania,  seeing  that 
her  commerce  was  injured  ljy  the  obstruction,  brought 
an  action  to  have  the  bridge  removed  as  a  nuisance. 
The  Bridge  Company  justified  its  erection  under  the 
Virginia  statute.  Pennsylvania  replied  that  the  stat- 
ute interfered  with  commerce,  and  was,  therefore,  void. 

The  court  decided  that  this  was  so.  It  held  that  the 
power  to  regulate  commerce  between  the  States,  given 
to  Congress,  extends  to  the  navigable  streams  whereon 
that  commerce  is  carried ;  that  commerce  included 
navigation  ;  that  Congress  had  recognized  the  Ohio  as 
a  navigable  river,  and  the  highway  of  commerce  ;  that 
the  bridge  interfered  with  such  navigation,  and  that 
the  Virginia  statute  authorizing  its  erection  was,  there- 
fore, in  conflict  with  the  power  granted  to  and  exer- 
cised by  Congress. 

And  the  court  ordered  that  the  bridge  should  be  re- 
moved,  unless  within  a  certain  time  it  should  be  raised 
to  such  a  height  as  to  admit  all  vessels  at  all  stages  of 
the  water. 


218  CONSTITUTIONAL    CASES    SIMPLIFIED. 


STATE  OF  PENNSYLVANIA  v.  THE  WHEELING 
BRIDGE   COMPANY. 

[18  How.  421.] 

But  the  Bridge  Conipaii}^  would  not  down.  Instead 
of  pulling  down  the  stracture,  it  induced  Congress  to 
pass  a  statute  legalizing  the  bridge  in  its  then  condi- 
tion and  ordering  it  to  stand  at  its  old  height.  Penn- 
sylvania was  angry  and  asked  the  court  to  have  the 
directors  of  the  company  committed  for  contempt  in 
not  carrying  out  the  orders  of  the  court.  But  the 
court  held  that  the  bridge  was  now  legal,  for  Congress 
having  power  to  regulate  commerce,  might  place  ob- 
structions upon  its  free  exercise  at  its  discretion. 


EXCEPT  AS  TO  LOCAL  REGULATIONS. 


COOLEY  V.    THE    PORT     AVARDENS  OF  . 
PHILADELPHIA. 

ri2  How.  299.] 

A  law  of  Pennsylvania  made  it  the  duty  of  every 
vessel,  arriving  from  or  bound  to  any  foreign  port  or 
place,  to  receive  a  pilot,  and  prescribed  certain  duties 
to  the  masters  of  vessels  in  respect  to  such  pilots.  It 
also  provided  that  a  vessel  which  neglected  or  refused 
to  take  a   pilot  should  forfeit    a  certain   amount    of 


CONSTITUTIONAL    CASES    SIMPLIFIED.  21i) 

money,  and  one  Cooley,  the  owner  of  the  Undine, 
having  brought  himself  withhi  this  provision,  was  pro- 
ceeded against  for  the  penalty.  He  pleaded  that  the 
law  was  unconstitutional,  because  pilot  laws  Avere  laws 
"regulating  commerce,"  and  therefore  beyond  the 
jjower  of  a  State  to  enact. 

The  Supreme  Court  said,  that  though  it  was  true 
that  pilot  laws  were  regulations  of  commerce  within 
the  Constitution,  yet  that  they  were  not  therefore  void. 
The  power  to  regulate  commerce,  the  court  said,  in- 
cludes various  subjects  upon  some  of  which  there 
should  be  a  uniform  rule  for  the  whole  country,  and 
upon  others  there  may  very  well  be  different  rules  in 
different  localities.  .In  the  first  class  of  cases  the 
power  is  exclusive  in  Congress  ;  in  the  second,  unless 
Congress  legislates  upon  the  subject,  the  States  may. 
Pilot  laws  are  res^ulations  of  commerce  which  may 
very  well  be  different  in  different  localities,  and  as 
Congress  had  never  passed  a  uniform  pilot  law,  the 
State  laws  on  the  subject  were  good. 


WHAT  IS   "  COMMERCE." 


PAXIL  V.  VIRGINIA. 

[8  Wall.  1(58.] 

A  Virginia  statute  provided  that  no  insurance  com- 
pany, not  incorporated  under  the  laws  of  the  State, 
should  carry  on  business  in  the  State  without  a  license, 
to  obtain  which  it  had  to  make  a  deposit  of  securities  in 


220  CONSTITUTIONAL    CASES    SIMPLIFIED. 

the  State  treasury.  Mr.  Samuel  Paul  was  the  eiiter- 
prishig  agent  in  Virginia  of  some  New  York  insurance 
companies,  and  he  nndertook  to  issue  some  policies 
without  having  obtained  the  above  license.  Mr. 
Samuel  Paul  came  to  grief;  he  was  fined  for  his  dis- 
obedience, and  on  appeal  to  the  Supreme  Court  of  the 
United  States  the  judgment  was  affirmed. 

The  Supreme  Court  ruled  that  the  Virginia  statute 
was  not  a  regulation  of  commerce,  for  the  very  good 
reason  that  issuing  a  policy  of  insurance  was  not  com- 
merce. *' The  policies,"  said  Mr.  Justice  Field, 
"  are  simple  contracts  of  indemnity  against  loss  by 
fire,  entered  into  between  the  corporations  and  the  as- 
sured for  a  consideration  paid  by  the  latter.  These 
contracts  are  not  articles  of  commerce  in  any  proper 
meaning  of  the  word.  They  are  not  subjects  of  trade 
and  barter  offered  in  the  market,  as  somethins:  havinar  an 
existence  and  value  independent  of  the  parties  to  them. 
They  are  not  commodities  to  be  shipped  or  forwarded 
from  one  State  to  another,  and  then  put  up  for  sale. 
They  are  like  other  personal  contracts  between  par- 
ties, which  are  completed  by  their  signature  and  the 
transfer  of  the  consideration.  Such  contracts  are  not 
inter-state  transactions,  though  the  parties  may  be 
domiciled  in  different  States.  " 

Section  8,  Art.  I.,  of  the  Constitution,  provides  that  Congress 
shall  have  power  "  to  regulate  commerce  with  foreign  nations  and 
among  the  several  States,  and  with  the  Indian  tribes."  In  the 
confederation  which  preceded  the  Federal  Union,  Congress  had  no 
power  over  the  subject  of  commerce,  and  each  State  made  such 
laws  on  the  subject  as  it  saw  lit  to  make.  The  result  was  disas- 
trous. The  competition  between  the  different  Commonwealths  led 
to  the  passage  of  laws  by  each  State  which  should  increase  its  own 
trade  at  the  expense  of  the  others,  and  the  framers  of  the  Constitu- 
tion,  with  great  unanimity,   agreed  that  commerce   between  the 


COXSTITUTIONAL    CASKS    SIMPLIFIED.  221 

States  and  foreigu  nations  was  a  subject,  beyond  all  others,  to  be 
dealt  "with  by  the  general  government,  which  had  no  interest  in 
benefiting  one  State  at  the  expense  of  another. 

Commerce  includes  not  only  the  buying,  selling,  and  exchange 
of  commodities,  but  also  navigation  by  water  and  traffic  by  land. 
The  subject-matter  of  traffic  may  be  either  goods  or  persons.  (Mr. 
Justice  Barbour  went  out  of  his  way  in  Miln's  Case  to  say  that 
persons  cannot  be  the  subject  of  commerce,  and  that  therefore  laws 
regulating  the  transpoi'tation  of  persons  by  the  State  were  consti- 
tutional; but  this  idea  was  speedily  oveiTuled  by  the  Supreme 
Court.)     On  this  point  see  Paul  v.  Virginia,  ante,  p.  211). 

Gibbons  v.  Ogden,  The  Passenger  Cases,  and  The  State  of  Pennsyl- 
vania V.  The  Wheeling  Bridge  Company  are  the  leading  cases  under 
this  clause  of  the  Constitution.  Brown  v.  State  of  Maryland  (ante, 
p.  197),  which  we  have  seen  as  construing  the  meaning  of  "  duties 
on  imports,"  is  a  much  cited  authority  on  this  part  of  the  Constitu- 
tion also.  There,  it  will  be  remembered,  the  State  statute  required 
all  importers  of  foreigu  goods  by  the  bale  or  package,  selling  the 
same  by  wholesale,  to  take  out  a  license.  The  act  was  held  void, 
first,  because  it  laid  a  duty  on  imports,  and  secondly,  because  it 
was  a  "regulation  of  commerce." 

But  while  the  Constitution,  as  quoted  above,  gives  Congress 
power  to  legislate  on  the  subject,  there  is  no  express  provision  in 
the  Constitution  which  inhibits  the  States  from  doing  the  same 
thing.  The  question  then  arises,  is  there  any  implied  prohibition 
on  the  States  from  the  fact  that  the  power  is  given  to  Congress? 
The  answer  is,  that  there  is  to  a  certain  extent.  Two  rules  have 
been  laid  down  by  the  Supreme  Court,  viz. :  — 

1 .  Wliere  the  subject  is  of  a  national  character,  or  capable  of  one 
uniform  system  or  plan  of  regulation,  the  power  of  Congress  is  exlusive. 
Here  the  States  have  no  right  to  pass  laws  at  all,  even  if  Congress 
does  not,  for  inaction  on  the  subject  by  Congress  is  equivalent  to 
a  declaration  that  the  commerce  under  its  control  shall  be  free  and 
untrammeled,  and  hampered  by  no  regulations  at  all. 

2.  When  the  subject  is  of  a  local  character  the  States  may  legislate, 
if  Congress  has  not.  Pilot  laws  and  harbor  regulations  are  an  ex- 
ample of  this  class  of  laws.  See  Cooley  v.  Port  Wardens,  supra. 
But  it  should  be  remembered  that  even  these  local  subjects 
may  be  brought  under  the  control  of  Congress  at  its  discretion. 
The  State  laws  are  valid  so  long  as  Congress  passes  no  laws  of  the 
kind,  but  as  soon  as    the  National  government    chooses  to   take 


222  CONSTITUTIONAL    CASES    SIMPLIFIED. 

the  subject  under  its  control,  the  State  laws  cease  to  be  of  any 
authority. 

On  the  other  hand,  there  are  two  classes  of  cases  in  which  the 
power  of  the  States  over  commerce  is  exclusive,  viz. :  — 

1.  Where  the  commerce  is  not  extra-territorial.  On  this  see  Veazie 
V.  Moor,  post,  p.  223. 

2.  When  the  regulation  is  ivithin  the  police  poioer  of  the  State. 
As  to  this  see  City  of  New  York  v.  Miln,  and  The  License  Cases, 
post,  p.  225. 


CONSTlTirnONAL    CASES    SIMPLIFIED.  223 


WHAT  IS  COMMERCE    ''AMONG"   THE  STATE  iS. 


VEAZIE  V.  MOOR. 

[14  How.  oG8.] 

The  river  Peno])Scot  is  situated  entirely  within  the 
State  of  Maine,  having  its  rise  far  in  the  interior  of 
the  State.  Its  npper  part  is  separated  from  tide 
water  by  falls  impassable  for  purposes  of  navigation, 
and  the  river  does  not  form  a  part  of  any  continuous 
track  of  commerce  between  other  States  or  for- 
eio;n  countries.  The  exclusive  right  to  run  boats 
on  this,  part  was  granted  by  the  State  to  Moor,  whose 
rights  were  contested  by  Veazie,  who  considered  the 
grant  to  Moor  unconstitutional  for  the  reasons  in 
Gibbons  v.  Ogden. 

In  the  Supreme  Court  the  grant  was  held  valid. 
The  court  said  that  commerce  with  foreio;n  nations, 
which  the  States  are  prohibited  from  regulating,  cannot 
be  applied  to  transactions  wholly  internal — between 
citizens  of  the  same  community. 

To  constitute  "  commerce  between  States  or  foreign  countries," 
it  is  necessary  ttiat  it  be  not  confined  to  one  State  exclusively. 
The  ordinary  trade  of  a  State,  the  local  buying,  selling  and  ex- 
change, the  making  of  contracts  and  conveyances,  the  rules  for  the 
regulation  of  local  travel  and  communication,  and  all  the  infinite 
variety  of  matters  which  are  of  local  interest  exclusively,  are  left 
wholly  to  the  regulation  of  State  law.  The  commerce  of  a  State, 
which  Congress  may  control  and  which  a  State  must  not,  must  in 
some  stage  of  its  progress  be  extra-territorial.  "Nor,"  said  Mr. 
Justice  Daniel  in  Veazie  v.  Moor,  "  can  it  be  properly  concluded 
that,  because  the  products  of  domestic  enterprise  in  agriculture  or 
manufactures,  or  in  the  arts,  may  ultimately  become  the  subjects  of 


224  CONSTITUTIONAL    CASES    SIMPLIFIED, 

foreign  commerce,  that  the  control  of  the  means  or  the  encourage- 
ments by  which  enterprise  is  fostered  and  protected  is  legitimately 
within  the  import  of  the  phrase  '  foreign  commerce,'  or  fairly  im- 
plied in  any  investiture  of  the  power  to  regulate  such  commerce. 
A  pretension  as  far  reaching  as  this  would  extend  to  contracts  be- 
tween citizen  and  citizen  of  the  same  State,  would  control  the  pur- 
suits of  the  planter,  the  grazier,  the  manufacturer,  the  mechanic,  the 
immense  operations  of  the  collieries  and  mines  and  furnaces  of 
the  country;  for  there  is  not  one  of  these  avocations,  the  results  of 
which  may  not  become  the  subjects  of  foreign  commerce,  and  be 
borne,  either  by  turnpikes,  canals  or  railroads  from  point  to  point 
within  the  several  States  toward  an  ultimate  destination.  Such  a 
pretension  would  effectually  prevent  or  paralyze  every  effort  at  in- 
ternal improvement  by  the  several  States,  for  it  cannot  be  supposed 
that  the  States  would  exhaust  their  capital  and  their  credit  in  the 
construction  of  turnpikes,  canals  and  railroads,  the  remuneration 
derivable  from  which,  and  all  control  over  which,  might  be  immedi- 
ately wrested  from  them,  because  such  public  works  Avould  be  facil- 
ities for  a  commerce  which,  whilstavailing  itself  of  these  facilities 
was  unquestionably  internal,  although  intermediately  or  ultimately 
it  might  become  foreign." 

A  good  illustration  of  this  rule  arose  in  1869.  Congress  passed 
a  law  regulating  the  sale  of  illuminating  oil,  and  imposing  penalties 
for  preparing,  offering  for  sale,  or  selling  it,  except  after  it  had  been 
subjected  to  a  prescribed  test  as  a  protection  against  explosion. 
The  law  was  held  inoperative  within  State  limits.  "The  express 
grant  of  power  to  regulate  commerce  among  the  States,"  said  the 
Chief  Justice,  "has  always  been  understood  as  limited  by  its  terms, 
and  as  a  virtual  denial  of  ouy  power  to  interfere  with  the  internal 
trade  and  business  of  the  separate  States."  U.  S.  v.  Dewitt,  9 
Wall.  41. 


CONSTITUTIONAL    CASES    SIMPLIFIED.  225 


COMMERCE  AND    THE  POLICE   POWER. 


THE  LICENSE   CASES. 
[5  How.  504.] 

These  cases  were  three  in  number,  and  were  all  con- 
sidered by  the  court  at  the  same  time.  In  Massachu- 
setts, Rhode  Island,  and  New  Hampshire  there  were 
statutes  forbidding  the  sale  of  spirituous  liquor,  in  less 
quantities  that  twenty-eight  gallons,  without  a  license. 
Thurlow,  in  Massachusetts,  retailed  some  liquor  without 
a  license.  Pierce,  having  purchased  a  small  barrel  of 
American  gin  in  Boston,  carried  it  to  New  Hampshire, 
where,  not  being  licensed,  he  sold  it  in  its  original  pack- 
age. Fletcher,  having  purchased  from  the  original  im- 
porter some  French  brandy,  sold  it  in  Rhode  Island  with- 
out a  license.  Each  was  indicted  and  convicted,  and  all 
contested  the  conviction  on  the  ground  that  the  license 
laws  were  regulations  of  commerce,  and  beyond  the 
power  of  the  States  to  pass. 

The  court,  for  several  reasons,  decided  that  the  laws 
were  valid,  the  princij^al  one  being  that  they  were 
police  regulations  and  not  regulations  of  commerce 
within  the  Constitution. 


CITY  OF  NEW  YORK  v.    MILN. 

Ill  Pet.  102.] 

The  State  of  New  York  passed  a  law  which  required, 
under  a  penalty,  the  master  of  every  vessel  arriving  in 

15 


226  CONSTITUTIONAL    CASES    SIMPLIFIED. 

New  York  from  a  foreign  country,  or  from  a  port  in 
another  State,  to  make  a  report  in  writing,  within 
twenty-four  hours,  of  the  names,  ages  and  last  place 
of  settlement  of  each  passenger.  The  master  of  the 
shij)  Emily,  from  Liverpool,  which  arrived  in  New  York 
one  August  day  in  the  year  1829,  with  several  hundred 
passengers,  failed  to  make  the  report,  and  Miln,  the 
owner,  was  sued  by  the  city  for  the  penalty.  Miln 
defended  his  captain's  act  on  the  ground  that  the  New 
York  statute  assumed  to  regulate  commerce  between 
the  port  of  New  York  and  foreign  ports  and  was 
unconstitutional.  But  the  court  held  that  the  statute 
was  not  a  regulation  of  commerce  but  of  police,  and 
the  statute  was  declared  valid.  "A  State,"  said  Mr. 
Justice  Barbouu,  "  has  the  same  undeniable  and  unlim- 
ited jurisdiction  over  all  persons  and  things  within  its 
territorial  limits  as  any  foreign  nation,  where  that 
jurisdiction  is  not  surrendered  or  restrained  by  the 
Constitution  of  the  United  States  ;  by  virtue  of  this  it 
is  not  only  the  right,  but  the  bounden  and  solemn  duty, 
of  a  State  to  advance  the  safety,  happiness  and  pros- 
perity of  its  people  and  to  provide  for  its  general 
welfare  by  any  and  every  act  of  legislation  which  it 
may  deem  to  be  conducive  to  these  ends,  where  the 
power  over  the  particular  subject  or  the  manner  of  its 
exercise  is  not  surrendered  or  restrained  in  the  manner 
just  stated.  All  these  powers  which  relate  to  mere 
municipal  legislation,  or  what  may  perhaps  more 
properly  be  called  internal  police,  are  not  thus  surren- 
dered or  restrained,  and  consequently  in  relation  to 
these  the  authority  of  a  State  is  complete,  unqualified 
and  exclusive." 
The  police   power  of  a  State,  and  the   matters  properly  falling 


CONSTITUTIONAL    CASES    SlMPLIt^IED.  227 

Within  it,  are  discussed  more  at  length  in  a  subsequent  chapier, post, 
Chap.  VI.  In  City  of  New  York  v.  Miln  and  The  License  Cases, 
laws  which  it  was  endeavored  to  have  nullified  as  regulations  of  com- 
merce were  held  to  be  not  regulations  of  "commerce"  but  of 
"police." 


228  CONSTITUTIONAL    CASES    SIMPLIFIED. 


CHAPTER   Y.— PROPERTY  RIGHTS. 


A  QUANT  FROM  THE    STATE  IS  A  CONTRACT. 


FLETCHER  V.  PECK. 

[6  Cranch,  87.] 

A  Georgia  Legislature,  by  statute,  made  a  grant  of 
lands  to  certain  parties.  A  subsequent  Legislature  of 
the  same  State  revoked  the  grant  on  the  ground  of  al- 
leged corruption,  and  transferred  the  lands  to  other 
persons.  The  Supreme  Court  held  that  the  second 
statute  was  void,  because  it  impaired  the  obligation  of 
a  contract. 

Section  10,  Art.  I.,  of  the  Constitution,  provides  that  no  State 
"shall  pass  an}' law  impairing  the  obligation  of  contracts."  "A 
contract,"  said  Chief  Justice  Marshall,  in  Fletcher  v.  Peck,  "is  a 
compact  between  two  or  more  parties,  and  is  either  executory  or 
executed.  An  executory  contract  is  one  in  which  a  party  binds 
himself  to  do  or  not  to  do  a  particular  thing.  A  contract  executed 
is  one  in  which  the  object  of  contract  is  performed.  *  *  *  a 
contract  executed,  as  well  as  one  which  is  executory,  contains  obli- 
gations binding  upon  the  parties."  A.  agrees  to  pay  a  certain  sum 
on  a  certain  day,  or  to  do  or  refrain  from  doing  some  act.  B.,  for 
a  considei'ation,  gives  C.  a  deed  of  lands.  The  contract  of  A.  is 
executory,  and  that  of  B.  is  executed. 

It  was  laid  down  in  Fletcher  v.  Peck,  that  the  term  "contract" 
in  the  Constitution  includes  both  executory  and  executed  contracts; 
that  a  grant  is  an  executed  contract,  and  therefore  grants  from  the 


CONSTITUTIONAL    CASES    SIMPLIFIED.  229 

State  to  an  individual  are  within  tlie  Constitution.  These  a  State 
by  the  Constitution,  is  prohibited  from  impairing,  by  altering, 
amending,  or  repealing  the  terms  of  the  grants. 


230  CONSTITUTIONAL    CASES    SIMPLIFIED. 


BUT  NOT  PUBLIC  OFFICES. 


BUTLER  V.  PENNSYLVANIA. 

[10  How.  402.] 

On  the  first  clay  of  February,  1843,  Mr.  Butler  was 
appointed  by  the  Governor  of  Pennsylvania  a  Canal 
Commissioner,  for  one  year  from  date,  under  a  law 
then  in  force,  which  directed  the  Governor  to  appoint 
annually  canal  commissioners  whose  terms  of  office 
should  commence  on  the  first  of  February  in  every 
year,  and  whose  compensation  should  be  four  dollars 
pe7'  diem.  Mr.  Butler  gladly  accepted  the  office, 
its  emoluments  and  its  duties,  but  in  April  of  the  same 
year  the  Legislature  reduced  his  salary  to  three  dollars 
a  day,  and  ordered  that  on  and  after  the  following 
October,  Canal  Commissioners  should  be  elected  by  the 
people  instead  of  appointed.  When  the  election  came 
off  Mr.  Butler  was  not  elected,  and  he  had  to  step  out 
to  make  room  for  the  successful  candidate. 

Mr.  Butler  was  not  satisfied  with  his  treatment,  but 
claimed  his  salary  at  four  dollars  a  day  as  of  old,  from 
the  time  the  new  law  had  been  passed  till  the  end  of 
his  term  in  February,  1844.  He  considered  that  the 
statute  prescribing  the  length  of  his  term  and  the 
salary  he  was  to  receive,  constituted  a  contract  with 
him  which  tiie  State,  by  the  subsequent  law  reducing 
his  salary,  and  turning  him  out  of  office,  could  not  im- 
pair. But  he  failed  to  persuade  the  court.  "  The 
contracts  designed  to   be  protected  by  the  Constitu- 


CONSTITUTIONAL    CASES    SIMPLIFIED.  231 

tion,"  said  the  Supreme  Court,  "  are  contracts  by 
which  perfect  rights,  certaiu  definite,  fixed  private 
rights  of  property  are  vested.  These  are  clearly  dis- 
tinguishable t'roni  the  measures  or  engagements  adopted 
or  undertaken  by  the  body  politic  or  State  govern- 
ment for  the  benefit  of  all,  and  from  the  necessity  of 
the  case,  and  according  to  universal  understanding,  to 
be  varied  or  discontinued  as  the  public  good  shall  re- 
quire." 

The  principle  decided  in  this  case  was  an  important  one.  The 
court  was  called  on  to  answer  thi^  question,  whether,  when  the 
Legislature  has  created  an  office  with  certain  salary  and  emoluments, 
and  a  person  has  been  appointed  to  the  office  under  the  law  for  a  cer- 
tain term,  and  is  fulfilling  its  duties,  a  subsequent  Legislature  can 
abolish  the  office  before  his  term  expires,  or  reduce  the  salary. 
Baldwin  v.  Pennsylvania  decides  that  it  can,  provided  there  is 
nothing  in  the  State  Constitution  which  prohibits  such  a  law,  for 
the  first  statute  is  not  a  *'  contract  "  within  the  Federal  Constitu- 
tion. 


232  CONSTITUTIONAL    CASES    SIMPLIFIED. 


A  LICENSE  JVOT  A  CONTRACT. 


STONE  V.  MISSISSIPPI. 

[11  Olto,  8U.] 

Thiiio;s  are  often  tolerated  in  a  community  for  years, 
when  all  at  once  the  people  become  suddenly  virtuous 
and  abolish  with  o-reat  indionation  something^  that 
had  not  before  that  appeared  to  bother  anybody. 
When,  in  1867,  the  Mississippi  Agricultural  and 
Manufacturing  Aid  Society  were  granted  by  the  Legis- 
lature the  right  to  run  a  lottery  in  the  State  for  twenty- 
five  years,  the  people  of  Mississippi,  as  represented  by 
the  Legislature,  evidently  did  not  see  any  particular 
harm  in  games  of  chance.  In  consideration  of  this 
grant  the  company  paid  into  the  State  treasury  $5,000 
and  an  annual  tax  of  $1,000.  In  1870,  however,  the 
spasmodic  return  of  virtue  came,  and  the  State  passed 
a  law  prohibiting  all  kinds  of  lotteries  within  its  limits. 
The  company  objected  to  being  suppressed  under  this 
law,  alles-ino;  that  their  charter  constituted  a  contract 
on  the  part  of  the  State  to  allow  them  to  run  a  lottery 
for  twenty-five  years  in  consideration  of  the  $5,000 
and  the  $1,000  a  year;  and  that  this  could  not  be 
abrogated  by  the  State. 

But  the  court  said  (1)  that  the  State  had  made  no 
"  contract ;  "  it  had  only  granted  a  "  license  ;  "  (2) 
that  no  Legislature  could  bargain  away  the  police 
power  of  the  State,  and  lotteries  fell  within  that  power. 


CONSTITUTIONAL    CASES    SIMPLIFIED.  233 

Therefore,  the   company  must  go  under,  for  the  law 
abolishing  it  was  valid. 

The  first  point  decided  in  Stone  v.  Mississippi  is  also  very  import- 
ant. The  principle  decided  there  is  that  a  license  from  the  State  au- 
thorizing a  person  to  do  an  act  which,  but  for  such  license  would 
be  forbidden,  does  not  constitute  a  contract  between  the  State  and 
such  individual  which  the  State  may  not  repeal  or  modify  at  its 
discretion.  Licenses  to  sell  spirituous  liquors  are  a  good  illustra- 
tion of  privileges  of  this  character.  They  are  permissions  to  sell 
liquor,  to  carry  on  a  trade  which  is  prohibited  to  persons  not 
having  licenses,  and  this  privilege  may  be  withdrawn  by  the  State 
at  any  time. 

The  second  point,  i.  e.  that  relating  to  the  police  power  of  the 
State,  is  considered  at  more  length  in  a  subsequent  chapter. 


234  CONSTITUTIONAL    CASES    SIMPLIFIED. 


CHARTERS  TO  PRIVATE  CORPORATIONS. 


DARTMOUTH  COLLEGE  v.  WOODWARD. 

[4  Wheat.  518.] 

Not  long  before  the  Revolution  .and  the  Declaration 
of  Independence  (it  was  when  George  III.,  was  Kingof 
England),  the  Crown  granted  a  charter  incorporating 
Darmouth  College,  in  New  Hampshire,  specifying  the 
number  of  trustees,  how  they  were  be  to  elected  and 
hold  their  offices,  what  powers  they  should  have,  and 
what  duties  they  should  perform.  In  1816,  the  Leg- 
islature of  the  State  of  New  Hampshire  passed  a  stat- 
ute altering  this  charteiyn  many  important  i)articulars, 
and  making  great  changes  in  the  organization  of  the 
college. 

The  question  was  whether  the  State  could  do  this, 
and  the  Supreme  Court  held  that  it  could  not ;  for  a 
charter  was  a  contract.  "  This,"  said  Chief  Justice 
Marshall,  "  is  plainly  a  contract  to  which  the  donees, 
the  trustees  and  the  Crown  (to  whose  rights  and  obli- 
gations New  Hampshire  succeeds)  were  the  parties. 
It  is  a  contract  made  on  a  valuable  consideration. 
It  is  a  contract  for  the  security  and  disposition  of 
property.  It  is  a  contract,  on  the  security  of  which 
real  and  personal  estate  has  been  conveyed  to  the  cor- 
poration. It  is  then  a  contract  within  the  letter  of  the 
Constitution  and  within  its  spirit  also." 


CONSTITUTIONAL   CASES   SIMPLIFIED.  L>35 

THE  PLANTERS  BANK  v.  SHARP. 

[6  How.  301.] 

In  1830,  the  Legislature  of  Mississipi^i  chartered  the 
Planters'  Bank.  The  charter  gave  the  bank  power  to 
possess,  receive,  retain  and  enjoy  lands,  goods,  chat- 
tels and  effects  of  what  kind  soever,  nature  or  quality, 
and  the  same  to  grant,  alien  or  dispose  of  for  the  good 
of  the  bank.  A  subsequent  Legislature  of  the  State 
passed  an  act  forbidding  every  bank  in  the  State  from 
transferring  any  note  of  other  evidence  of  debt. 

The  last  statute  was  held  void  because  it  impaired 
the  obligation  of  a  contract. 

Ne  more  important  case,  none  more  far-reaching  in  its  results, 
has  probably  ever  been  decided  by  a  judicial  tribunal  than  the 
Dartmouth  College  Case.  It  laid  down  a  great  rule  of  Constitu- 
tional right  which  every  day  is  becoming  of  wider  application.  Its 
name  is  familiar  to  thousands  of  laymen  who  have  but  a  faint  idea 
of  what  it  really  was.  The  name  of  the  great  American  Chief  Jus- 
tice will  always  be  associated  with  it,  and  for  acute  reasoning  and 
logic,  great  learning,  and  grand  judicial  eloquence,  it,  like  many 
others  of  the  judgments  of  that  great  jurist,  has  never  been 
excelled,  if,  indeed,  it  has  ever  been  equalled.  But  every  year  it 
is  appearing  clearer  that  in  this  instance,  he,  and  those  judges  who 
concurred  with  him,  made  a  mistake.  The  courts  of  several 
States  have  refused  to  commit  themselves  to  its  doctrines,  and  it 
has  required  the  power  of  the  Supreme  Federal  tribunal,  which  has 
thus  far  adhered  to  the  principle  which  the  Dartmouth  College  Case 
decided,  to  enforce  its  rule.  And  in  the  court  in  which  Marshall 
once  presided,  there  is,  to-day,  a  strong  opposition  to  the  principle 
which  the  Chief  Justice  had  so  great  a  share  in  declaring. 

That  principle  is  that  the  charter  of  a  private  corporation  is  a 
contract,  the  obligation  of  which  the  State  may  not  impair.  This, 
notwithstanding  much  dissent  has  been  reiterated  in  so  many  deci- 
ions,  (not  a  "  current,"  but  a  "  torrent "  of  authorities,  as  i-emarked 
by  a  Pennsylvania  judge),  that  it  cauhardly  now  be  questioned.  And 
the  Supreme  Court  of  the  United  States  has,  in  subsequent  cases, 


23G  CONSTITUTIONAL    CASES    SIMPLIFIED. 

gone  even  farther  in  this  direction,  and  has  decided  that  not  only 
those  franchises  which  are  granted  for  the  accomplishment  of  the 
general  purposes  of  the  corporation  are  protected  by  the  Constitu- 
tion, but  all  the  collateral  stipulations  which  are  inserted  in  the 
charter,  but  which  are  not  necessary  for  the  accomplishment  of  its 
general  design,  are  equally  protected.  On  this  point  see  Gordon 
V.  The  Appeal  Tax  Court,  and  Woodruff  v.  Trapnall,  post,  p.  237. 


CONSTITUTIONAL    CASliS    SlMl'LIFIED.  237 


COLLATE  REAL  STIPULATIONS  IN  PRIVATE 
CHARTERS. 


GORDON  V.  THE  APPEAL  TAX  COURT. 

[3  How.  133.] 

In  1804,  the  Legislature  of  Maryland  chartered 
several  banks,  among  them  the  Union  Bank,  whose 
charter,  under  the  act,  was  to  run  until  1816.  In  1821, 
the  Legislature  passed  an  act  continuing  the  banks' 
charters  to  1845,  upon  condition  that  they  would  build 
a  certain  public  road  and  pay  a  certain  school  tax  — 
the  statute  declaring  that  if  any  of  the  banks  accepted 
and  complied  with  the  terms  and  conditions  of  the 
act,  the  faith  of  the  State  was  pledged  not  to  impose 
any  further  tax  or  burden  upon  them.  The  Union 
Bank  built  its  share  of  the  road  and  paid  its  school 
tax.  But  the  Maryland  law-makers  were  not  satisfied. 
Banks,  they  argued,  were  rich,  and  able  to  stand 
almost  anything,  and  so  in  1841  they  passed  a  law 
taxing  all  bank  stocks,  and  the  assessor  proceeded  to 
collect  this  tax  from  the  stockholders  of  the  Union 
Bank.  He  had  no  success,  however,  for  the  Supreme 
Court  decided  that  the  statute  of  1821  was  a  contract 
exempting  the  stockholders  of  the  bank  from  any 
tax  on  their  stock,  which  no  subsequent  act  of  the 
State  could  al)rooate. 


238  CONSTITUTIONAL    CASES    SIMPLIFIED. 

WOODRUFF  v.    TRAPNALL. 

[10  How.   190.] 

This  is  a  story  in  six  chai^ters. 

Chapter  T. 

A  State. Legislature  incorporates  a  bank.  The  State 
is  the  State  of  Arkansas,  the  bank  is  called  the  Bank 
of  the  State  of  Arkansas.  One  section  of  the  act 
incorporating  the  bank  provides:  «' The  bills  and 
notes  of  said  institution  shall  be  received  in  all  pav- 
ments  of  debts  due  to  the  State  of  Arkansas."  All  this 
is  in  the  year  of  our  Lord,  1836. 

Chapter  II. 

The  Honorable  William  Woodruffis  Treasurer  of  the 
State  of  Arkansas.  The  Honorable  Mr.  AVoodruif,  to 
secure  the  faithful  performance  of  the  duties  of  his 
high  office,  executes  to  the  State  a  bond  with  sureties. 

Chapter  III. 

The  Honorable  Mr.  Woodruff  does  not  perform  his 
duties  as  a  State  Treasurer  should.  He  omits  to  turn 
over  to  the  State  $3,000  which  he  has  collected,  nnd 
judgment  is  obtained  against  him  for  this  amount  and 
costs.  The  whole  amount  is  $3,755  ;  the  time  is  the 
year  1840. 

Chapter  IV. 

Men  may  come  and  men  may  go,  but  legislators 
goon  making  laws  forever.  It  is  now  a.  t>.  1845. 
The    Legislature    of  Arkansas  passes    an  act    which 


CONSTITUTIONAL    CASES    SIMPLIFIED.  239 

declares  that  hereafter  nothing  shall  be  received  in 
payment  by  the  State  but  par  funds.  The  notes  of 
the  Bank  of  the  State  of  Arkansas  are  not  just  now 
"  par  funds  "  l)y  a  good  deal. 

Chapter  V. 

One  day  in  1847,  the  Honorable  Mr.  Woodruff  is 
interviewed  by  the  sherilf  on  the  subject  of  the  judg- 
ment for  $3,755.  He  expresses  a  desire  to  pay  it, 
and  takes  out  his  pocket-book.  The  sheriff  discover- 
ing that  the  money  is  all  in  Arkansas  State  Bank  bills 
quotes  the  act  of  1845  and  refuses  to  accept  them. 

Chapter  VI. 

The  Honorable  Mr.  Woodruff' appeals  to  the  Supreme 
Court  of  the  United  States,  and  that  tribunal  says  that 
the  sheriff  must  take  the  Arkansas  Bank  bills  in  satis- 
faction of  the  judgment.  Why?  Because  the  under- 
taking of  the  State  in  the  act  of  1K36  to  receive  the 
notes  of  the  bank  constituted  a  contract  between  the 
State  and  the  holders  of  the  notes,  which  the  State 
could  not  break.  But,  of  course,  notes  issued  by  the 
bank  after  the  act  of  1845  were  not  within  the  contract, 
and  might  be  refused  by  the  State 

There  is  considerable  discussion  now-a-days  upon  ttie  way  in 
whicli  corporations  are  beginning  to  "run"  tiiis  country,  its 
legislators,  and,  in  some  few  instances,  its  judges.  The  principle  of 
the  Dartmouth  College  Case  is  one  great  lever  on  which  all  mon- 
opolies are  able  to  work ;  but  even  since  then  they  have  obtained 
further  privileges  in  such  judicial  decisions  as  the  two  above.  The. 
Darmouth  College  Case  simply  decided  that  the  grant  of  a  franchise 
by  the  State  to  a  corporation  by  means  of  which  the  latter  is 
enabled  to  pursue  and  accomplish  the  general  objects  of  its  creation 
is  a  contract  giving  rights  which  the  people  can  never  resume.    But 


240  CONSTITUTIONAL    CASES    SIMPLIFIED. 

the  principle  of  the  above  two  cases  Is  that  all  the  collateral 
stipulations  which  have  been  inserted  in  the  charter  are  equally 
sacred. 

I  take  the  liberty  of  using  Prof.  Pomeroy's  language,  in  his  Hand- 
book ou  Constitutional  Law,  as  best  explaining  the  meaning  of 
this  extension  of  the  doctrine :  "  The  collateral  stipulations  of  this 
character  which  have  been  generally  inserted  in  charters,  may  be 
grouped  in  two  classes :  those  which  limit  the  State's  power  of 
taxation,  and  those  which  limit  the  State's  right  of  eminent  domain. 
To  illustrate:  if  a  State  should  incorporate  a  bank  with  ordinary 
banking  franchises,  and  should  add  in  the  charter  that  the  rate  of 
taxation  imposed  upon  the  institution  should  never  exceed  a  certain 
specified  amount;  or,  if  a  State  should  incorporate  a  toll-bridge 
company  with  the  ordinary  franchises  necessary  to  enable  the 
corporation  to  erect  and  maintain  a  bridge  at  a  certain  place,  and 
to  take  tolls  tkereon,  and  should  add  a  clause  in  the  charter, 
declaring  that  no  other  bridge  should  be  erected  within  certain 
distances  up  and  down  the  stream ;  it  is  plain  that  neither  of  these 
stipulations  would  be  necessary  to  the  existence  and  the  accom- 
plishment of  the  objects  of  these  respective  corporations.  The 
bank  might  carry  on  all  legitimate  banking  business  without  any 
limitation  upon  the  rate  of  taxation  applicable  to  it;  the  bridge 
company  might  build  and  maintain  their  structure,  and  collect  tolls 
from  all  who  cross,  although  there  were  a  dozen  rival  bridges. 
But  it  is  plain  that  these  and  similar  provisions  in  charters  might 
be,  and  probably  would  be,  very  advantageous  to  the  particular 
corporation.  At  the  same  time  they  would  have  the  effect,  if 
operative,  to  limit  and  restrain  two  important  functions  of  the 
State  government,  —  that  of  taxation,  and  that  of  eminent  domain. 
Can  a  State  Legislature  thus  bind  itself  and  all  future  Legislatures; 
or,  in  other  words,  are  these  and  similar  clauses  contracts  between 
the  State  and  the  corporation,  and  thus  within  the  protection  of 
the  United  States  Constitution?" 

Gordon  v.  The  Appeal  Tax  Court,  Woodruff  r.  Trapnall  and 
other  cases  since,  answer  these  questions  in  the  affirmative.  From 
this  doctrine  there  has  been  much  dissent  in  the  State  courts,  which 
have  argued  that  the  States  are  absolutely  sovereign  so  far  as  they 
have  not  parted  with  that  sovereignty  to  the  general  government; 
that  they  are  absolutely  sovereign  over  the  subjects  of  taxation 
and  eminent  domain;  being  thus  sovereign  they  cannot  relinquish 
their  sovereignty;  one  Legislature  cannot  bind  a  subsequent  Legis- 


C0^'STITUT10MAL    CASES    SIMPLIFIED.  241 

lature  on  these  subjects  since  the  subsequent  Legislature  as  much 
represents  the  sovereign  people  and  holds  all  its  sovereign  powers 
as  the  former  did.  But  these  arguments  have  been  unavailing  in 
the  Supreme  Court  of  the  United  States. 

16 


242  CONSTITUTIONAL    CASES    SIMl'LIFIKD. 


CONTRACTS   NOT  IMPLIED. 


THE  CHARLES  RIVER  BRIDGE  v.  THE 
WARREN   BRIDGE. 

[11  Pet.  420.] 

The  Charles  River  Bridge  Company  was  incorporated 
by  the  Massachusetts  LegisUiture  and  given  power  to 
erect  and  maintain  a  toll-bridge.  Subsequently  the 
Warren  Bridge  Company  was  chartered,  and  author- 
ized to  build  a  free  bridge  a  very  short  distance  from 
the  first  structure.  This  was,  of  course,  destruction 
to  the  Charles  Kiver  Bridge  Company,  wliose  right  to 
collect  tolls  was  what  made  the  franchise  valuable. 

The  Charles  River  Bridge  Company  tried  to  prevent 
the  building  of  the  Warren  Bridge,  claiming  that  with 
their  franchise  there  was  an  implied  contract  that  the 
Legislature  would  not  interfere  with  it  in  this  way. 
But  the  court  said  that  as  there  was  no  express  contract, 
nothing  could  be  implied  and  the  Warren  Bridge  might 
be  built. 

A  half  a  loaf  is  better  than  uo  bread,  and  the  people  have  some- 
thing to  be  thankful  for,  after  ail.  The  Federal  courts  have  not 
gone  quite  as  far  as  corporations  asked  tliera  to  go.  They  had  de- 
cided that  charters  of  private  corporations  are  contracts,  and  that  all 
express  collateral  stipulations  contained  in  such  cliarters  are  also 
contracts.  In  The  Charles  River  Bridge  Case,  they  were  asked  to  go 
farther,  and  to  rule  that  the  State  might  give  rights  to  corporations 
by  implication,  even  when  it  had  not  done  so  expressly.  But  the  Su- 
preme Court  thought  tliat  the  line  must  be  drawn  somewhere,  and 


CONSTITUTIONAL    CASES    SIMPLIFIED.  243 

that  this  was  about  the  place  to  draw  it,  and  they  laid  it  down  that 
the  charter  is  to  be  construed  most  strongly  against  the  grantee  and 
that  no  rights  which  are  not  expressed  in  it  can  arise  under  it  by 
mere  implication. 

Providence  Bank  v.  Billings,  ante,  p.  162,  was  an  earlier  decision 
in  which  the  same  principle  was  established. 


244  CONSTITUTIONAL    CASES    SIJVIPLIFIED. 


MUNICIPAL  CORPORATIONS. 


EAST  HARTFORD  v.    THE  HARTFORD 
BRIDGE    CO. 

[10  How.  oil.] 

A  town  was  given  the  right  to  maintain  a  ferry  across 
a  river.  Afterwards,  by  several  hiws,  the  State  first 
granted  one-half  of  the  ferry  privilege  to  another  town, 
and  finally  ordered  it  to  be  discontinued  entirely.  The 
town  went  to  law,  but  got  no  redress,  for  the  court 
held  that  a  grant  to  a  municipal  corporation  is  not  a 
contract,  but  is  a  law  for  the  public  good. 

Municipal  corporations  are  created  as  necessary  conveniences  in 
government,  and  liold  their  powers  and  privileges  subject  to  legisla- 
tive modiflcatioQ  and  recall  at  all  times.  "  The  doings  of  the  Leg- 
islature as  to  this  ferry,"  said  Mr.  Justice  Woodbury,  in  the  above 
case,  "  must  be  considered  rather  as  public  laws  than  as  contracts. 
They  related  to  public  interests.  They  changed  as  those  interests 
demanded.  The  grantees  likewise,  the  towns  being  mere  organiza- 
tions for  public  purposes,  were  liable  to  have  their  public  powers, 
rights  and  duties  modified  or  abolished  at  any  moment  by  the  Leg- 
islature. They  are  incorporated  for  public  and  not  private  objects. 
They  are  allowed  to  hold  privileges  or  property  only  for  public 
purposes.  The  members  are  not  shareholders,  nor  joint  partners 
in  any  corporate  estate  which  they  can  sell  or  devise  to  others,  or 
Avhich  can  be  attached  and  levied  on  for  theirdebts.  Hence,  gener- 
ally, the  doings  between  them  and  the  Legislature  are  in  the  nature 
of  legislation  rather  than  compact,  and  subject  to  all  the  legis- 
lative conditions  just  named,  and,  therefore,  to  be  considered  as 
not  violated  by  subsequent  legislative  changes." 

But  as  regards  its  property,  a  municipal  corporation  is  entitled 
to  the  same  protection  as  a  natural  person.  The  City  of  Oshkosh 
had  raised  some  money  by  taxation  for  the  purpose  of  erecting  a 


CONSTITUTIONAL    CASP^S    SIMPLIFIED.  245 

high  school  building.  Afterwards  the  Legislature  passed  a  law  or- 
dering a  portion  of  this  money  to  be  used  for  purchasing  a  site  for 
a  State  normal  school.  The  statute  was  declared  void.  "  As  to  all 
matters  pertaining  to  vested  rights  of  propert)',"  said  the  court, 
"  whether  real  or  personal,  and  to  the  obligation  of  contracts, 
municipal  corporations  are  as  much  within  the  protection  of  the 
Federal  Constitution  as  private  iudividuMs  are.  The  Legislature 
cannot  divest  a  municipal  corporation  of  its  property  without  the 
consent  of  its  inhabitants,  nor  impair  the  obligation  of  a  contract 
entered  into  with  or  in  behalf  of  such  corporation.  State  v,  Haben, 
22  Wis.  660. 


246  CONSTITUTIOXAL    CASES    SIMPLIFIED. 


WHAT     LAWS     IMPAIR    THE    OBLIGATION    OF 
CONTRACTS  —  INSOL  VENT  LA  WS. 


STURGES  V.  CROWNINSHIEL.D. 

[4  Wheat.  122.] 

Crowninshield  was  sued  in  Massachusetts  on  two 
promissory  notes  made  by  him  in  New  York,  on  March 
22,  1811,  payable  in  August  of  the  same  year.  He 
replied  that  he  had  been  discharged  on  February  15, 
1812,  from  all  debts  by  a  New  York  court,  under  an 
insolvent  act  of  the  State  of  New  York.  "  When  was 
that  insolvent  act  passed?"  asked  the  Supreme  Court. 
"  On  the  third  day  of  April,  1811,"  answered  Crownin- 
shield. "Then  the  law  impairs  the  obligation  of  a 
contract,"  said  the  court,  "  and  it  cannot  help  you. 
A  contract  is  an  agreement  in  which  a  party  under- 
takes to  do  or  not  to  do  a  particular  thing.  The  law 
binds  him- to  perform  his  undertaking,  and  this  is,  of 
course,  the  obligation  of  his  contract.  In  the  case  at 
bar  Crowninshield  lias  given  his  promissory  note  to  pay 
the  plaintiff  a  sum  of  money  on  or  before  a  certain  day. 
The  contract  binds  him  to  pay  that  sum  on  that  day, 
and  that  is  the  obligation.  Any  law  which  releases 
apart  of  this  obligation,  must,  in  the  literal  sense  of 
the  word,  impair  it.  Much  more  must  a  law  impair  it 
which  makes  it  totally  invalid,  and  entirely  discharges 
it." 

Having  seen  the  cases  which  decide  as  to  what -are  "  contracts" 
within  the  Constitutional  provision,  the  foregoing  case,  and  the  fol- 


CONSTITUTIONAL    CASES    SIMPLIFIED.  247 

lowing,  are  presented  to  answer  the  second  question,  viz. :  What 
kinds  of  laws  impair  the  obligation  of  contracts  witliin  the  same 
section  of  the  Constitution.  "  This  question,"  says  Mr.  Pomeroy, 
"  is  one  not  easy  to  answer  in  its  full  extent.  There  may  be  some 
State  statutes  which  plainly  and  unequivocally  have  the  injurious 
effect,  concerning  which  there  Is  no  room  for  argument.  There 
may  be  others  which  as  plainly  and  unequivocally  do  not  have  the 
injurious  effect.  Between  these  two  extremes  there  are  kinds  and 
classes  of  laws  concerning  which  there  may  be  a  doubt,  there  may 
be  room  for  argument,  for  difference  of  opinion  among  legislators 
and  judges.  When  we  attempt,  therefore,  to  lay  down  general 
principles  which  shall  be  absolutely  inclusive  and  exclusive  —  in- 
cluding all  laws  which  are  obnoxious  to  the  Constitutional  provision, 
and  excluding  all  others  —  we  shall  find  ourselves  involved  in  great 
difficulty."  The  courts  have  found  this  same  difficulty,  and  the 
decisions  on  this  question  have,  therefore,  been  somewhat  conflict- 
ing—the States  courts  often  taking  one  view  of  the  subject,  the 
Federal  courts  another  and  diverse  view.  The  following  general 
principles  have,  however,  been  pretty  generally  coincided  in  by 
all,  viz.: 

1.  A  contract  may  be  impaired  without  being  destroyed,  and  if 
this  is  so,  it  is  as  much  within  the  Constitutional  provision  as 
though  it  was  completely  destroyed  by  the  obnoxious  law.  The 
Constitution,  as  we  have  seen,  says  that  no  law  shall  be  passed  by 
the  States  which  "  impairs  "  the  obligation  of  a  contract. 

2.  The  law  to  be  void  under  this  provision  must  operate  upon  a 
contract  entered  into  before  its  passage.  See  Ogden  v.  Saunders, 
post,  p.  251. 

3.  And  if  before  the  execution  of  the  contract  there  was  any  law 
in  force,  giving  the  Legislature  the  right  to  modify  it,  or  to  repeal 
or  modify  a  charter,  etc.,  a  subsequent  repeal  or  modification  will 
be  good,  for  the  power  thus  reserved  enters  into  and  becomes  part 
of  the  contract  at  the  time. 

4.  A  judicial  decision  is  a  "  law."  The  obligation  of  a  contract 
cannot  be  impaired  by  a  change  in  the  judicial  decisions  of  the 
State  courts  —  the  term  "law"  in  the  Constitution  includes  de- 
cisions of  courts  as  well  as  statutes  of  Legislatures. 

Laws  impairing  the  obligation  of  contracts  may  be  divided  into 
two  classes:  (I.)  those  which  apply  to  the  terms  of  contracts,  (II.) 
those  which  apply  only  to  the  remedy  upon  them. 


248  CONSTITUTIONAL    CASES    SIMPLIFIED. 

I.  As  to  laws  which  apply  to  the  terms  of  contracts,  there  is  not 
much  confusion  in  the  decisions.  The  cases  of  this  character  are 
well  summed  up  by  Mr.  Pomeroy  in  these  words:  "In  respect  to  pri- 
vate contracts  between  individuals,  it  is  so  plain  as  to  require  the  ci- 
tation of  no  authority  to  support  the  proposition  that  all  State  laws 
operatingupon  past  agreements,  and  affecting  the  very  terms  thereof, 
which  wholly  or  partially  discharge  one  contracting  party,  without 
the  consent  of  the  other,  from  doing  the  very  thing  which  he  agreed 
to  do,  or  which  add  new  stipulations  or  conditions  to  the  agreement, 
or  which  take  away  any  which  were  incorporated  into  it,  or  which 
extend  or  shorten  the  agreed  time  for  performance,  or  which  render 
contracts  illegal  or  void,  which  were  before  legal  and  valid,  or 
which  make  those  legal  and  binding,  which  were  before  illegal  and 
null,  all  such  legislative  acts  would  impair  the  obligation  of  exist- 
ing contracts  affected  thereby.  *  *  *  Iq  respect  to  contracts 
between  a  State  and  private  persons,  including  grants  and  charters, 
it  is  equally  plain  that  where  no  power  for  such  purpose  is  ante- 
cedently reserved,  all  statutes  directly  repealing  the  grant  or  char- 
ter, or  in  any  way  modifying  its  express  terms,  by  changing  the 
organization  of  a  corporation,  or  by  taking  away  powers  or  by  add- 
ing new  conditions  or  duties,  impair  the  obligation  of  this  species 
of  contracts."     Pomeroy  Const.  L.  GOO,  601. 

State  insolvent  laws  are  an  illustration  of  laws  of  this  character. 
Such  laws  provide  for  the  discharge,  under  certain  conditions,  of 
the  debtor  from  his  debts.  Therefore,  as  decided  in  the  great 
case  of  Sturges  v.  Crowninshield,  they  are  void  as  to  debts  created 
before  their  passage,  for  in  releasing  the  debtor  from  what  he 
agreed  to  do,  they  impair,  or  rather  destroy  the  obligation  of  the 
contract.  But  as  to  debts  created  subsequent  to  their  passage,  they 
are  valid.     On  this  point  see  Ogden  v.  Saunders,  post,  p  251. 

II.  As  to  laws  which  apply  only  to  the  remedy,  there  is  more  difficulty 
and  It  is  here  where  the  decisions  of  the  courts  are  not  always 
reconcilable.    Laws  of  this  kind  fall  under  the  following  heads : 

1.  Laws  taking  away  remedies.  A  law  which  deprives  a  party  of 
all  legal  remedies  upon  an  existing  contract  is  void.  But  it  seems 
if  a  person  has  two  remedies,  and  a  subsequent  statute  takes  away 
only  one  of  them  it  is  not  void,  for  he  has  still  the  other  remedy 
left. 

2.  /Statutes  of  limitation.  A  statute  of  limitation  is  one  which 
prescribes  that  a  person  having  a  right  of  action  shall  commence  it 
within  a  certain  time,   and  if  lie  fails  to  sue  within  that  time  the 


CONSTITUTIONAL    CASES    SIMPLIFIED.  249 

doors  of  the  courts  are  closed  to  him.  The  courts  have  laid  it 
down  that  not  all  statutes  of  limitation  are  obnoxious  to  the  consti- 
tutional provision.  If  their  effect  is  to  prevent  a  party  from 
bringing  an  action  —  as  by  leaving  him  too  short  a  time  —  then  they 
are  void,  but  if  they  leave  hira  a  reasonable  time  in  which  to  come 
into  court,  although  that  time  is  shorter  than  had  before  existed, 
they  are  valid.  For  an  illustration  of  this  distinction,  see  Terry  v. 
Anderson,  post,  p.  254. 

3.  Laws  abolishing  imprisonment  fur  debt.  These,  it  is  held,  are 
not  void,  they  do  not  at  all  impair  the  obligation  of  contracts.  See 
Mason  r.  Haile,pos«,  p.  256. 

4.  Stay  and  appraisement  laios.  A  stay  law  is  one  which  provides 
that  execution  or  other  process  shall  not  issue  for  some  definite 
period  of  time  after  the  recovery  of  a  judgment.  An  appraisement 
law  is  one  which  requires  the  property  of  a  judgment  creditor 
seized  on  execution  to  be  appraised,  and  forbids  its  sale  for  a  price 
less  than  a  certain  portion  of  its  appraised  value.  These  laws  are 
held  in  the  Federal  courts  to  be  unconstitutional  so  far  as  they 
apply  to  contracts  entered  into  before  their  passage.  See  Bronson 
V.  Kiazie,  posf,  p.  257.  But  the  State  courts  trke  a  different  view 
of  the  question.  Thus,  during  the  civil  war,  the  Legislatures  of 
Pennsylvania  and  Iowa,  passed  statutes  staying  all  civil  process 
against  persons  in  the  military  service  of  the  State  or  the  United 
States,  for  the  terra  of  such  service  and  a  short  period  thereafter. 
The  validity  of  these  statutes  was  contested,  but  the  Supreme 
Courts  of  both  States  decided  that  they  were  unobjectionable. 
Breitenbach  v.  Bush,  44  Pa.  St,  313;  McCormickr.  Kusch,  15  Iowa, 
127. 

6.  Laws  exempting  property  from  execution.  An  exemption  law 
is  one  which  relieves  all  or  a  portion  of  a  debtor's  property  from 
liability  to  be  seized  and  sold  under  execution.  A.,  for  example 
makes  a  promissory  note  to  B.,  which  he  fails  to  pay,  and  B.  gets 
judgment  against  him.  While  the  suit  is  pending  the  Legislature 
passes  a  law  which  exempts  from  execution  A. 's  tools,  hiS  house, 
his  household  furniture,  and  his  homestead.  Does  such  a  law 
effect  B.'s  claim.  The  courts  say  yes  to  this  question  when  the 
amount  of  the  exemption  is  reasonable.  See  Edwards  v.  Keazry, 
post,  p.  2G0. 

Sturges  V.  Crowninshield  is  also  a  leading  case  on  another  point. 
The  Constitution  provides  that  Congress  "  shall  have  power  to 
establish  uniform  laws  on  the  subject  of  bankruptcies  throughout 


250  CONSTITUTIONAL    CASES    SIMPLIFIED. 

the  United  States."  The  question  arises  can  the  State  pass  bank- 
rupt or  insolvent  laws  also?  The  answer  is  that  the  power  is  given 
to  Congress ;  but  that  body  may  or  may  not  exercise  this  power. 
When  it  abstains  from  doing  so  the  States  may  legislate  on  the 
subject;  but  when  Congress  passes  a  bankrupt  law  the  State  laws 
must  give  way  to  the  National  law.  Should  Congress,  however, 
abolish  its  bankrupt  laws,  then  the  State  law  comes  in  force  again, 
to  become  nugatory,  however,  whenever  Congress  again  sees  fit  to 
exercise  its  power  on  the  subject.- 


CONSTITUTIONAL    CASES    SIMPLIFIED.  2f)l 


LAWS  12^  FORCE  AT  THE  TIME  OF  COK- 
TRACT  —  DOMICIL  OF  CREDITOR. 


OGDEN  v.    SAUNDERS. 

[12  Wheat.  358.] 

Ogden,  who  lived  in  New  York,  in  September,  1806, 
accepted  certain  bills  of  exchange  held  by  Saunders,  a 
resident  of  Kentucky,  Subsequently  he  obtained  a 
discharge  under  the  New  York  insolvent  law  of  1801. 
But  afterwards  removing  to  Louisiana,  he  was  sued 
upon  these  bills,  and  set  up  the  New  York  discharire. 

The  court  decided  that  the  New  York  law  being  in 
existence  when  the  bills  were  accepted  by  Ogden,  did 
not  impair  the  obligation  of  a  contract,  and  the  dis- 
charge was  valid.  The  insolvent  act  being  part  of  the 
law  when  the  contract  was  made,  became  part  of  the 
agreement. 

But  on  another  ground  Ogden  was  not  so  successful. 
The  court  held  further,  that  the  State  statute  could  not 
affect  the  rights  of  creditors  who  were  citizens  of  other 
States,  and  therefore  could  not  bind  Saunders. 


BALDWIN  V.  HALE. 

[1  Wall.  223.] 

02,000.  Boston,  February  21,  1854. 

Six  months  after  date,  I  promise  to  pay  to  the  order  of  myself, 
two  thousand  dollars,  payable  in  Boston,  value  received. 

J.  W.  Baldwin. 

Mr.  Hale,  of  Vermont,  as  indorsee  for  value  of  the 
above  note,  brought  suit  on  it  one  day  in  the  United 


252  CONSTITUTIONAL    CASES    SIMPLIFIED. 

States  Circuit  Court  for  the  District  of  Massachusetts. 
Mr.  Baldwin  pleaded  a  discharge  from  all  his  debts  in 
insolvency,  which  he  had  already  obtained  in  a  Mas- 
sachusetts court. 

Mr.  Hale  referred  the  court  to  Ogden  v.  Saunders, 
but  Mr.  Baldwin  said  that  the  courts  of  Massachusetts 
had  always  held  that  if  the  contract  in  express  terms 
was  to  be  performed  in  the  State  where  the  debtor  re- 
sided, and  where  he  obtained  his  discharge,  the  cred- 
itor, though  an  inhabitant  of  another  State,  is  bound 
by  it.  But  the  Supreme  Court  of  the  United  States 
said  that  the  Massachusetts  courts  were  wrong,  and 
Mr,  Baldwin's  discharge  was  no  defence  to  Mr.  Hale's 
suit. 

The  second  question  decided  in  Ogden  v.  Saunders,  and  the  one 
also  decided  iu  Baldwin  v.  Hale  was  the  following:  Does  the  dis- 
charge of  a  debtor  by  the  insolvent  law  of  one  State  affect  the 
claim  of  creditors  in  other  States?  Three  classes  of  cases,  it  will 
be  readily  seen,  may  arise  where  this  question  will  have  to  be  an- 
swered, viz.:  (1.)  Where  the  creditor  and  debtor  are  inhabitants 
of  the  same  State.  (2.)  Where  the  creditor  and  debtor  are  inhabi- 
tants of  different  States.  (3.)  Where  the  creditor  and  debtor  are 
inhabitants  of  different  States,  but  the  contract  is,  by  its  terms,  to 
be  performed  in  the  State  where  the  debtor  lives.  The  case  above 
decided  that  the  creditor  is  bound  in  case  1,  but  is  not  bound  in 
cases  2  and  3. 

1.  A.  and  B.  ai-e  citizens  of  New  Yorlv.  The  New  York  courts 
grant  A.  a  discharge  from  his  debts.  This  discharge  destroys  B.'s 
claim  on  A. 

2.  A.  is  an  inhabitant  of  New  York,  C.  of  Kentucky.  The  New 
York  discharge  will  not  affect  C.'s  claim.     See  Ogden  v.  Saunders, 

ante,  251. 

3.  A.,  a  citizen  of  Massachusetts,  executes  a  note  payable  In 
Boston,  which  comes  into  the  hands  of  D.,  who  resides  in  Ver- 
mont.   The  discharge  of  A.  from  his   debts  by   a  Massachusetts 


CONSTITUTIONAL    CASES    SIMPLIFIED.  253 

court,  does  not  affect  D.'s  claim.  The  courts  of  Massachusetts  for 
some  time  maintained  that  D's  claim  was  affected  in  such  cases, 
but  Baldwin  v.  Hale,  overturned  these  decisions. 


254  CONSTITUTIONAL    CASES    SIMPLIFIED. 


STATUTES  OF  LIMITATION. 


TERRY   V.   ANDERSON. 

[5  Otto,  G28.] 

By  the  law  of  Georgia  up  to  the  year  1869,  a  suit  to 
enforce  the  liability  of  the  stockholders  of  a  bank  for 
its  debts  was  not  barred  until  the  expiration  of  twenty 
years  from  the  time  the  action  accrued.  But  in  1869 
the  Legislature  declared  that  all  actions  of  this  charac- 
ter, among  others,  which  had  accrued  prior  to  the  1st  of 
June,  1865,  should  be  brought  by  the  1st  of  January, 
1870,  or  the  right  to  sue  would  be  forever  barred. 
Mr.  Terry,  in  1874,  brought  an  action  against  the 
assignees  of  the  Planters'  Bank,  of  Georgia,  and  was 
met  by  this  statute.  He  did  not  deny  that  the  statute, 
if  valid,  barred  his  claim,  but  he  argued  that  it  was- 
unconstitutional  as  impairing  the  obligation  of  a  con- 
tract. He  argued,  unfortunately  for  himself,  on  the 
wrong  side. 

*' The  court,"  said  Chief  Justice  Waite,  <'has 
often  decided  that  Statutes  of  Limitation  are  not  uncon- 
stitutional, if  a  reasonable  time  is  given  for  the  com- 
mencement of  an  action  before  the  bar  takes  ef- 
fect. *.  *  *  It  is  difficult  to  see  why,  if  the  Legis- 
lature may  prescribe  a  limitation  where  none  existed 
before,  it  may  not  change  one  which  has  already 
been  established.  The  parties  to  a  contract  have  no 
more  a  vested  interest  in  a  particular  limitation  which 


CONSTITUTIONAL    CASES   SIMPLIFIED.  255 

has  been  fixed,  than  they  have  in  an  unrestricted  right 
to  sue.  They  have  no  more  a  vested  interest  in  the 
time  for  the  commencement  of  an  action  than  they 
have  in  the  form  of  the  action  to  be  commenced,  and 
as  to  the  forms  of  actions  or  modes  of  remedy,  it  is 
well  settled  that  the  Legislature  may  change  them  at 
its  discretion,  provided  adequate  means  of  enforcing 
the  right  remain.  In  all  cases  the  question  is  one  of 
reasonableness,  and  we  have  therefore  only  to  con- 
sider whether  the  time  allowed  in  this  statute  is,  under 
all  the  circumstances,  reasonable.  Of  that  the  Lesis- 
lature  is  primarily  the  judge,  and  we  cannot  overrule 
the  decision  of  that  department  of  the  government, 
unless  a  palpable  error  has  been  committed." 

And  as  the  statute  in  this  case  gave  over  nine 
months  on  which  to  sue  upon  a  cause  of  action  which 
had  already  been  running  over  four  years,  the  court 
thought  there  was  nothing  unreasonable  in  the  new 
law,  and  Mr.  Terry  lost  his  case. 

Statutes  of  Limitation,  it  is  said  in  a  more  recent  case,  are  statutes 
of  repose.  "They  are  necessary  to  the  welfare  of  society.  The 
lapse  of  time  constantly  carries  with  it  the  means  of  proof.  The 
public  as  well  as  individuals  are  interested  in  the  principle  upon 
which  they  proceed.  They  do  not  impair  the  remedy,  but  only 
require  its  application  within  the  time  specified.  If  the  period 
limited  be  unreasonably  short,  and  designed  to  defeat  the  remedy 
upon  pre-existing  contracts  which  was  part  of  their  obligation,  we 
should  pronounce  the  statute  void."  Edwards  v.  Kearzy,pos^, 
p.  260. 


256  CONSTITUTIONAL    CASES    SIMPLIFIED. 


ABOLISHING  IMPRISONMENT  FOR  DEBT. 


MASON  V.  HArLE. 

[12  Wheat.  370.J 

Among  the  rights  which  a  creditor  formerly  had  of 
forcing  his  debtor  to  pay  up  was  that  of  throwing  him 
into  jail.  Imprisonment  for  debt  is  now  pretty  gener- 
ally abolished  in  this  country,  but  in  1814  it  had  not 
been.  Therefore  it  was,  that  Mr.  Mason,  of  Rhode 
Island,  Avho  had  an  obdurate  debtor  by  the  name  of 
Haile  in  durance  vile,  was  not  at  all  satisfied  when  the 
Legislature  stepped  in  and  ordered  that  a  discharge  in 
insolvency  from  all  debts  should  also  discharge  a  party 
*'  from  all  imprisonment,  arrest,  and  restraint  of  his 
person  therefor." 

Mr.  Mason,  of  course,  claimed  that  this  law  impaired 
the  obligation  of  a  contract.  But  the  Supreme  Court 
did  not  think  so.  Such  a  law  acts  merely  upon  the 
remedy,  and  that  in  part  only.  It  does  not  take  away 
the  entire  remedy,  l:)ut  only  so  far  as  imprisonment 
forms  a  part  of  such  remedy.  Imprisonment  is  no 
part  of  the  contract,  and  simply  to  release  the  prisoner 
does  not  impair  its  obligation. 


CONSTITUTIONAL    CASES    SIMPLIFIED.  257 


APPRAISEMENT  LAWS. 


BROXSON  V.  KINZIE. 

[1  How.  311.] 

In  1838,  the  holder  *of  a  mortgage  on  hind  in  Illinois 
was  entitled  by  the  law  of  the  State  to  foreclose  the 
same  immediately  upon  a  breach  of  the  condition,  and 
to  have  the  land  sold  absolutely,  and  in  that  year  Kiii- 
zie  executed  a  mortgage  of  his  land  to  Brouson.  Three 
years  later  the  Legislature  of  Illinois  passed  a  statute 
providing  that  in  sales  under  a  decree  foreclosino-  a 
mortgage,  the  debtor  should  have  the  right  to  redeem 
the  land  within  one  year  after  the  sale  by  paying  the 
purchase-money  and  ten  per  cent  interest,  and  that  no 
sale  should  be  made  until  the  lands  were  first  appraised, 
and  unless  they  were  sold  for  at  least  two-thirds  of 
their  appraised  vakie.  Shortly  after  this  statute  was 
passed  Kinzie  failed  to  pay  interest  as  agreed,  and 
Bronson  applied  to  have  the  lands  sold  absolutely  for 
what  they  would  bring.  But  Kinzie  objected,  and 
said  that  the  sale  should  be  made  subject  to  the  rio-ht 
of  redemption,  and  should  not  be  made  at  all  if  the  land 
did  not  bring  two-thirds  its  appraised  value. 

The  court  was  appealed  to,  aiid  it  decreed  in  favor 
of  Bronson.  The  statute  of  1841,  it  held,  was  void 
so  far  as  it  applied  to  this  mortgage. 

'♦If  the  law  of  the  State  passed  afterwards,"  said 
Chief  Justice  Taney,  "had  done  nothing  more  than 


258  CONSTITUTIONAL    CASES    SIMPLIFIED. 

change  the  remedy  upon  contracts  of  this  description, 
they  would  be  liable  to  no  constitutional  objection. 
For,  undoubtedly,  a  State  may  regulate  at  pleasure,  the 
modes  of  proceeding  in  its  courts  in  relation  to  past 
contracts  as  well  as  future.  It  may,  for  example, 
shorten  the  period  of  time  Avithin  which  claims  shall 
be  barred  by  the  Statute  of  Limitations.  It  may,  if  it 
thinks  proper,  direct  that  the  necessary  implements  of 
agriculture,  or  the  tools  of  the  mechanic,  or  articles  of 
necessity  in  household  furniture,  shall,  like  wearing  ap- 
parel, not  be  liable  to  execution  on  judgments  *  *  » 
And  although  the  new  remedy  may  be  less  convenient 
than  the  old  one,  and  may  in  some  degree  render 
the  recovery  of  debts  more  tardy  and  difficult,  yet  it 
will  not  follow  that  the  law  is  unconstitutional.  What- 
ever belongs  merely  to  the  remedy  may  be  altered 
according  to  the  will  of -the  State,  provided  the  alter- 
ation does  not  impair  the  obligation  of  the  contract. 
But  if  that  effect  is  produced  it  is  immaterial  whether 
it  is  done  by  acting  on  the  remedy  or  directly  on  the 
contract  itself.  In  either  case  it  is  prohibited  by  the 
Constitution.  *  *  *  It  is  difficult,  perhaps,  to 
draw  a  line  that  would  be  applicable  in  all  cases  between 
legitimate  alteration  of  the  remedy  and  provisions, 
which  in  the  form  of  remedy,  impair  the  right.  But  it 
is  manifest  that  the  obligation,  of  a  contract,  and  the 
rights  of  a  party  under  it,  may  in  effect  be  destroyed  by 
denying  a  remedy  altogether,  or  may  be  seriously  im- 
paired by  burdening  the  proceedings  with  new  condi- 
tions and  restrictions  so  as  to  make  the  remedy  hardly 
worth  pursuing.  *  *  *  If  such  rights  (as  given  by 
the  statute  of  1831)  may  be  added  to  the  original  con- 
tract by  subsequent  legislation,  it  would  be  difficult  to 


CONSTITUTIONAL    CASES    SIMPLIFIED.  259 

say  at  what  point  they  must  stop.  An  equitable  in- 
terest in  the  premises  may,  in  like  manner,  be  conferred 
by  others,  and  the  right  to  redeem  may  be  so  pro- 
longed as  to  deprive  the  mortgagee  of  the  benefit  of  his 
security  by  rendering  the  property  unsalable  for  any 
thinty  like  its  value.  This  law  o;ives  to  the  mort<rasror 
and  to  the  judgment-creditor  an  equitable  estate  in 
the  premises,  which  neither  of  them  would  have  been 
entitled  to  under  the  original  contract,  and  these  new 
interests  are  directly  and  materially  in  conflict  with 
those  which  the  mortgagee  acquired  when  the  mortgage 
was  made.  Any  such  modification  of  a  contract  by 
subsequent  legislation,  against  the  consent  of  one  of 
the  parties,  unquestionably  impairs  its  obligations  and 
is  prohibited  by  the  Constitution." 


260  CONSTITUTIONAL    CASES    SIMPLiriED . 


EXEMPTION  LA  WS. 


EDWARDS  V.  KEARZY. 

[6  Otto.  595.] 

Certain  debts  were  incurred  in  North  Carolina  prior 
to  the  year  1868.  In  that  year  a  new  Constitution  was 
adopted  by  whicli  the  personal  property  of  any  resident 
of  the  State  to  the  value  of  $500  was  exempted  from 
sale  under  execution  ;  also  a  homestead  and  the  dwel- 
ling and  building  thereon,  not  exceeding  in  value  $1,000. 

The  creditor  tried  to  take  these  things  from  the 
debtor  to  liquidate  his  demands,  but  the  latter  claimed 
them  as  exempt  under  the  Constitution.  The  creditor 
maintained  that  the  new  law,  being  passed  after  his 
demands  were  incurred,  impaired  the  obligation  of  the 
contract,  and  was  unconstitutional.  And  so  thought 
the  Supreme  Court  of  the  United  States. 

The  exemption  law  in  this  case  was  held  void  by  the  majority  of 
the  court  on  the  ground  that  "  in  regard  to  the  mass  of  contracts, 
and  the  situation  and  circumstances  of  debtors  as  they  are  ordina- 
rily found  to  exist,  it  would  seriously  affect  the  efficiency  of  reme- 
dies for  the  collection  of  debts."  Doing  so  it  impaired  the  obliga- 
tion of  the  contract  and  was  void.  Notwithstanding  the  result  in 
this  case,  it  does  not  follow  that  a  law  exempting  necessary  wear- 
ing apparel,  or  implements  of  agriculture,  or  the  tools  of  mechan- 
ics, or  articles  or  utensils  of  a  household  nature,  recognized  as 


CONSTITUTIONAL    CASES    SniPLIFIED.  261 

articles  and  utensils  of  necessity,  would  be  void.  But,  like  Statutes 
of  Limitation,  to  be  valid  they  must  be  reasonable.  The  North  Caro- 
lina exemption  was  more  than  was  necessary  and  reasonable  and 
was  therefore  void. 


262  CONSTITUTIONAL    CASES    SIMPLIFIED. 


EMINENT  DOMAIN. 


WEST   RIVER  BRIDGE   COMPANY  v.  DIX. 

[6  How.  507.] 

The  West  River  Bridge  Company  had  a  charter  from 
the  State  of  Vermont  granting  them  the  exchisive  privi- 
lege of  erecting  and  maintaining  a  bridge  over  a  river. 
A  subsequent  act  of  the  Legislature  provided  for  the 
condemning  of  property  for  highways,  and  under  this 
statute,  the  authorities  took  the  company's  bridge 
(after  assessing  compensation  for  it)  and  turned  it 
into  a  free  public  highway. 

The  company  argued  that  this  proceeding  impaired 
the  obligation  of  a  contract,  and  asked  to  have  the 
thing  set  aside.  But  while  the  court  agreed  with 
them  that  the  charter  was  a  contract,  it  held  that  the 
charter  was  subject  to  the  right  of  eminent  domain  in 
the  State,  and  that  the  company  had  no  legal  com- 
plaint. 

What  is  known  as  the  power  of  eminent  domain  is  the  authority 
which  the  State  has  to  control  and  appropriate  private  property 
for  the  public  benefit,  whenever  the  public  safety,  convenience  or 
welfare  may  require.  It  is  a  public  necessity  that  there  should  be 
a  street  made  through  my  lot.  I  cannot  refuse  to  part  with  the 
portion  of  my  land  required  for  that  purpose.  The  Constitutions 
of  the  United  States,  and  of  the  States,  provide,  however,  that 
private  property  shall  not  be  taken  without  "just  compensation," 
and,  therefore,  I  am  entitled  to  be  paid  the  value  of  my  property, 
and  the  State  cannot  take  it  away  without  paying  me. 


CONSTITUTIONAL    CASES    SIMPLIFIED.  263 

West  River  Bridge  Company  v.  Dix  is  an  important  case,  show- 
ing that  a  franchise,  like  any  other  kind  of  property,  may  be  taken 
away  in  part  or  in  whole  by  means  of  this  power  in  the  State, 


264  CONSTITUTIONAL    CASES    SIMPLIFIED. 


CHAPTER  YI.  —  THE  POLICE  POWER. 


PROTECTION  OF  PUBLIC  HEALTH. 


THE     SLAUGHTER-HOUSE     CASES. 
[IG  Wall.  36.] 

The  Legislature  of  Louisiana  in  1869  granted  to  a 
corporation  the  exclusive  right  for  twenty-five  years 
to  maintain  slausfhter-houses  and  cattle-yards  within 
a  certain  district,  and  prohibited  all  other  persons 
from  building  or  keeping  such  houses  or  yards  within 
these  limits.  It  is  also  required  that  all  cattle  or  other 
animals  intended  for  sale  or  slaughter  within  the 
district  should  be  brought  to  the  yards  and  houses  of 
the  corporation,  and  authorized  the  corporation  to 
charge  certain  fees  for  the  use  of  its  property  in  this 
way. 

The  butchers  of  New  Orleans,  which  city  was  within 
the  district,  objected  to  this  grant ;  they  said  it  was 
a  monopoly,  and  for  this  reason  illegal.  But  the  court 
construed  it  as  a  "  police  "  regulation,  designed  for  the 
health  and  comfort  of  the  people,  and  the  butchers  got 
no  relief. 

The  police  power  of  a  State  has  been  deflaecl  as  "  the  authority 
to  establish  for  the  intercourse  of  the  several  members  of  the  body 
politic  with  each  other,  those  rules  of  good  conduct  and  good 
neighborhood  which  are  calculated  to  prevent  a  conflict  of  rights 
and  to  insure  to  each  the  uninterrupted  enjoyment  of  his  own,  so 


CONSTITUTIONAL    CASES    SIMPLIFIED.  265 

far  as  is  reasonably  consistent  witli  a  corresponding  enjoyment  by 
others."  Cooley  Prin.  Const.  L.  227.  "It  extends  to  the  pro- 
tection of  the  lives,  limbs,  health,  comfort  and  quiet  of  all  persons, 
and  the  protection  of  all  property  within  the  State  *  *  *  and 
persons  and  property  are  subjected  to  all  kinds  of  restraints  and 
burdens  in  order  to  secure  the  general  comfort,  health  and  prosper- 
ity of  the  State."    Thorpe  v.  Rutland,  etc.,  R.  Co.,  27  Vt.  149. 

Laws  prohibiting  work  and  labor  or  the  pursuit  of  occupations  on 
Sunday  are  another  instance  of  police  regulations.  Although  they 
may  be  an  encroachment  on  the  religious  liberty  of  a  citizen,  or  a  res- 
traint upon  trade  and  commerce,  they  are  sufHciently  justified, and  are 
avalid  exercise  of  the  police  power  of  the  State.  So  are  laws  gov- 
erning the  use  of  highways,  such  as  regulating  the  speed  of  travel 
thereon,  their  improvement,  etc.  A  like  subject  is  the  regulation  of 
navigable  waters. 


266  CONSTITUTIONAL   CASES   SIMPLIFIED. 


POLICE  POWER  RESIDES  IN  THE  STATES. 
POWERS  OF  CONGRESS. 


UNITED   STATES  v.  DEWITT. 

[9  Wall.  41.] 

The  Internal  Revenue  Act,  passed  by  Congress  in 
1867,  declared  that  no  person  should,  under  penalty 
of  fine  and  imprisonment,  mix  naptha  and  illumin- 
ating oil  for  the  purpose  of  selling  them,  or  offer  this 
compound  for  sale.  It  also  prohibited  anyone  from 
offering  for  sale  oil  made  of  petroleum  for  illuminating 
purposes,  inflammable  at  less  temperature  than  100° 
Fahrenheit.  Dewitt,  who  lived  in  Detroit,  Michigan, 
did  just  what  the  statute  said  that  people  should  not 
do,  and  being  fined  for  liis  temerity,  appealed  to  the 
Supreme  Court,  urging  that  Congress  had  no  power 
to  pass  such  a  law. 

The  court  said  he  was  right.  "As  a  police  regula- 
tion," they  said,  "  relating  exclusively  to  the  internal 
trade  of  the  States,  it  can  only  have  efl'ect  where  the 
legislative  authqrity  of  Congress,  excludes,  territorily, 
all  State  legislation,  as  for  example,  in  the  District 
of  Columbia.'* 

The  Constitution  does  not  take  away  the  police  power  from  the 
States;  it  is  left  with  thetn.  The  National  government  cannot 
assume  any  supervision  of  the  police  regulations  of  the  States. 
But  the  Supreme  Court  of  the  Uuited  States  is  frequently  called  on 
to  examine  State  statutes  when  they  are  passed  ostensibly  under 


CONSTITUTIONAL    CASES    SIMPLIFIED.  267 

the  police  power,  and  to  consider  whether  they  do  not  interfere 
with  some  of  the  powers  given  exclusively  to  the  National  govern- 
ment. See  Railroad  Co.  v.  Husen,  and  Chy  Lung  v.  Freeman,  post, 
pp.  2G8,  269. 


268  CONSTITUTIONAL    CASES    SIMPLIFIED. 


MUST  NOT  CONFLICT  WITH  NATIONAL  RIGHTS. 


RAILROAD    CO.  v.  HUSEN. 

[5  Otto,  465.] 

In  violation  of  a  statute  of  Missouri  which  prohib- 
ited any  one  from  bringing  any  Texas,  Mexican  or 
Indian  cattle  into  the  State  between  March  1st  and 
November  1st  in  each  year,  the  Hannibal  and  St.  Jo- 
seph Railroad  carried  some  of  these  cattle  into  Mis- 
souri. Now,  these  cattle  had  a  disease  called  the 
Spanish  fever,  which  they  communicated  to  Mr. 
Husen's  cattle,  to  his  great  loss,  and  Mr.  Husen 
brought  an  action  against  the  railroad  company  to  re- 
cover his  damages. 

The  railroad  company  argued  that  the  statute  was 
void,  as  being  a  "  regulation  of  commerce,"  and  thus, 
as  we  have  seen,^  beyond  the  power  of  a  State  to  pass. 
Mr.  Husen's  counsel  on  the  other  hand  insisted  that  it 
was  a  police  regulation.     The  railroad  company  won. 

"We  admit,"  said  the  Supreme  Court,  "that  the 
deposit  in  Congress  of  the  power  to  regulate  foreign 
commerce  and  commerce  among  the  States  was  not"  a 
surrender  of  that  which  may  properly  be  denominated 
police  power.  What  that  power  is  it  is  difficult  to  de- 
fine with  sharp  precision.  It  is  generally  said  to  ex- 
tend  to   making   regulations   promotive    of  domestic 

'  Ante,  p.  215. 


CONSTITUTIONAL    CASES    SIMPLIFIED.  269 

order,  morals,  health  and  safety.  *  *  *  Jt  may 
also  be  admitted  that  the  police  powers  of  a  State  jus- 
tify the  adoption  of  precautionary  measures  against 
social  evils.  Under  it  a  State  may  legislate  to  prevent 
the  spread  of  crime,  or  pauperism,  or  disturbance  of 
the  peace.  It  may  exclude  from  its  limits  convicts, 
paupers,  idiots,  and  lunatics,  and  persons  likely  to  be- 
come a  public  charge,  as  well  as  persons  afflicted  by 
contagious  or  infectious  diseases.  The  same  principle, 
it  may  also  be  conceded,  would  justify  the  exclusion 
of  property  dangerous  to  tlie  property  of  citizens  of 
the  State,  for  example,  animals  having  contagious  or 
infectious  diseases.  All  these  exertions  of  power  are 
in  immediate  connection  with  the  protection  of  per- 
sons and  property  against  noxious  acts  of  other  per- 
sons, or  such  a  use  of  property  as  is  injurious  to  the 
property  of  others.     They  are  self-defensive." 

But,  notwithstanding  this,  the  court  said  that  the 
police  power  of  the  State  cannot  be  exercised  over  a 
subject  confided  exclusively  to  Congress  by  the  Fed- 
eral government,  beyond  the  absolute  necessity  for  its 
exercise.  Tested  by  this  rule  the  Missouri  statute  was 
a  plain  intrusion  upon  the  exclusive  domain  of  Con- 
gress. 


CHY  LUNG  V.  FREEMAN. 

[2  Otto,  275.] 

A  California  statute  required  the  master  of  every 
vessel  arriving  in  the  State  from  a  foreign  port  to  give 
a  bond  for  every  passenger  who  was  a  lunatic,  idiot, 
deaf,  dumb,  blind,  infirm,  a  public  charge,  or  likely  to 


270  CONSTITUTIONAL    CASES    SIMPLIFIED. 

become  one  soon,  or  a  lewd  or  debauched  woman. 
Chy  Lung  was  a  Chinese  woman,  and  a  passenger  on 
the  steamship  Japan,  from  China.  When  the  ship 
lauded  at  San  Francisco  the  California  officials  decided 
that  Chy  Lung  was  a  lewd  woman,  and  refused  to  let 
her  land  until  the  captain  had  executed  a  bond  under 
the  statute,  or  paid  a  sum  of  money  in  commutation 
thereof  which  the  statute  permitted.  The  captain  re- 
fused to  do  either.  Chy  Lung  would  have  had  to 
go  back  to  China  had  a  United  States  judge  not 
issued  a  habeas  corpus.  The  case  went  to  the  Su- 
preme Court  of  the  United  States,  where  the  statute 
was  declared  void,  and  Chy  Lung  was  allowed  to 
remain  in  the  "  land  of  the  free." 

The  ground  of  the  decision  was,  that  even  if  it  is 
within  the  police  power  of  a  State,  to  pass  statutes  in 
regard  to  the  criminal,  the  pauper  and  the  diseased 
emigrant  landing  within  its  borders,  this  power  is 
limited  to  such  laws  as  are  absolutely  necessary  for 
that  purpose.  The  statute  of  California  extended  far 
beyond  the  necessity,  and  invaded  the  right  of  Con- 
gress to  regulate  commerce  with  foreign  countries. 

The  question  in  these  cases  was  whether  what  was  called  by  the 
States  a  police  regulation,  aud  therefore  within  their  power  to  pass, 
was  really  of  this  character,  or  whether  it  was  a  "  regulation  of 
commerce  "  in  disguise.  And  the  Supreme  Court  of  the  United 
States  took  the  latter  view  of  it,  mainly  for  the  reason  that  it  was 
an  exercise  of  that  power  beyond  what  was  necessary,  and  inter- 
fered with  the  National  authority  over  interstate  and  foreign  com- 
merce more  than  there  was  any  need  for. 

As  to  the  Missouri  statute  the  court  said :  "  It  is  not  a  quaran- 
tine law,  it  is  not  an  inspection  law.  It  says  to  all  natural  persons 
and  to  all  transportation  companies :  '  You  shall  not  bring  into  the 
State  any  Texas  cattle,  or  any  Mexican  cattle,  or  Indian  cattle,  be- 
tween March  1  and  November  1  in  any  year,  no  matter  whether  they 
are  free  from  disease  or  not ;  no  matter  whether  they  may  do  an  in- 


CO^'STITUTIO^AL    CASES    SIMPLIFIKD.  271 

jury  to  the  inhabitants  of  the  State  or  not;  and  if  you  do  bring 
them  in,  even  for  the  purpose  of  carrying  them  through  the  State, 
without  unloading  them,  you  sliall  be  subject  to  extraordinary  lia- 
bilities.' Such  a  statute,  we  do  not  doubt,  it  is  beyond  the  power 
of  a  State  to  enact." 


272  CONSTITUTIONAL    CASES    SIMPLIFIED. 


ADMISSION  TO  THE  BAB. 


BRADWELL  v.   STATE. 

[K;  Wall.  130.] 

There  are  not  many  female  lawyers  in  the  United 
States,  but  the  few  manage  to  make  a  good  deal  of 
noise.  It  is,  therefore,  not  surprising  to  find  one  of 
them  bringing  a  sovereign  State  to  book  in  the  Supreme 
Court  of  Illinois,  for  refusing  to  admit  her  to  practice  in 
its  courts.  She  relied  upon  the  Fourteenth  Amendment 
to  the  Constitution,  that  no  State  shall  "  abridge  the 
privileges  or*  immunities  of  citizens  of  the  United 
States."  But  it  was  no  use.  The  right  to  practice 
law  in  the  State  courts  was  not  such  a  privilege,  said 
the  court. 

The  plaintiff  made  another  point  in  this  case.  She  quoted 
section  2  of  article  IV.  of  the  Constitution,  which  provides  that  "the 
citizens  of  each  State  shall  be  entitled  to  all  privileges  and  immuni- 
ties of  citizens  in  the  several  States,"  and  said  that  being  born  in 
Vermont,  and  being  refused  admission  to  the  bar  in  Illinois,  she 
was  within  the  protection  of  this  section.  But  it  was  discovered 
that  she  had  lived  a  good  many  years  and  was  then  living  in  Chicago, 
and  was,  therefore,  a  citizen  of  the  same  State  whose  laws  she  was 
complaining  about.    So  this  section  did  not  help  her  either. 

Subsequently  to  this  case,  the  legislators  of  Illinois  melted  and 
passed  a  law  permitting  women  to  be  admitted  to  the  bar.    The 


CONSTITUTIONAL    CASES    SIMPLIFIED.  273 

plaintiff  was  then  made  happy,  and,  in  the  words  of  her  counsel  is 
now  able  to  manage  those  "  many  causes,  in  which  the  silver  voice 
of  woman  would  accomplish  more  than  the  severity  and  sternness 
of  man  could  achieve." 

IS 


274  CONSTITUTIONAL    CASES    SIMPLIFIED. 


CORPORATIONS. 


PAUL.  V.  VIRGINIA. 

[8  Wall.  168.] 

Mr.  Samuel  Paul,  whom  we  remember  ^  as  argfuins: 
before  the  Supreme  Court  of  the  United  States  that 
the  Virginia  statute,  requiring  a  license  from  every  for- 
eign insurance  company  doing  business  in  Virginia, 
was  a  "  regulation  of  commerce,"  and  therefore  void, 
and  whom  we  also  remember  received  the  answer  that 
issuing  a  policy  of  insurance  was  not  *'  commerce"  at 
all, — Mr.  Samuel  Paul  made  before  that  tribunal  an- 
other argument  for  the  purpose  of  having  the  statute 
declared  unconstitutional.  He  submitted  that  the 
statute  conflicted  with  that  clause  of  the  United  States 
Constitution  which  declares  that  "  the  citizens  of  each 
State  shall  be  entitled  to  all  the  privileges  and  immuni- 
ties of  citizens  in  the  several  States"  because  here  was 
a  New  York  insurance  company  which  could  not  do 
business  in  Virginia  like  a  Virginia  company,  but  had 
to  get  a  license,  deposit  bonds,  etc. 

But  the  court  decided  against  Mr.  Paul  on  two 
grounds.  It  ruled,  first,  that  corporations  are  not  *'  citi- 
zens" within  the  clause  ;  second,  that  the  "  privileges 
and  immunities"  mentioned  above,  are  those  privileges 
and  immunities  which  are  common  to  the  citizens  in  the 

1  Ante,  p.  219. 


CONSTITUTIONAL    CASES    SIMPLIFIED.  275 

latter  States,  under  their  constitution  and  laws,  by  vir- 
tue of  their  being  citizens.  Special  privileges  enjoyed 
by  citizens  in  their  own  States  are  not  secured  by  this 
provision  in  other  States. 


INTOXICATING  LIQUORS. 


B  ARTE  MEYER  v.   IOWA. 

[18  Wall.  131.] 

Bartemeyer  was  fined  in  Iowa  for  selling  a  glass  of 
Tvhiskey  in  violation  of  a  law  of  the  State  prohibiting 
the  sale  of  intoxicating  liquors.  Barteme^'er  appealed 
to  the  Supreme  Court,  alleging  that  he  was  a  citizen 
of  the  United  States,  and  that  the  Iowa  law  abridged 
his  *'  privileges  and  immunities."  But  the  court  held 
that  the  law  was  valid.  Regulating  and  totally  pro- 
hibiting the  liquor  traffic  fell  within  the  i)olice  regula- 
tion of  a  State  ;  and  the  riijht  to  sell  intoxicating 
liquors  was  not  one  of  the  "  privileges  or  immunities," 
which  by  the  Fourteenth  Amendment  the  States  are 
fobidden  to  abridge. 


BEER  C03IPANY  v.  3IASSACHUSETTS. 

[7  Otto,  25.] 

The  Boston  Beer  Company  was  incorporated  in  1828, 
for  the  purpose  of  manufacturing  malt  liquors  in  all 
their  varieties,  a  statute  being  then  in  force  in  the 
State  giving  the  Legislature  power  to  alter  or  repeal 


27G  CONSTITUTIONAL    CASES    SIMPLIFIED. 

charters.  Under  a  prohibitory  liquor  law,  passed  in 
1869,  certain  malt  liquors  belonging  to  the  company 
were  seized  and  forfeited.  The  Beer  Company  claimed 
under  its  charter  a  right  by  contract  to  manufacture 
and  sell  liquor  forever  without  interference.  But  the 
court  decided  otherwise.  "  The  police  power,"  said 
Mr.  Justice  Bradley,  "  extends  to  the  protection  of 
the  lives,  health  and  property  of  the  citizens,  and  to 
the  preservation  of  good  order  and  the  public  morals. 
The  Legislature  cannot,  by  any  contract,  divest  itself 
of  the  power  to  provide  for  these  subjects." 

It  seems  to  be  pretty  well  settled  that  the  regulation  or  absolute 
prohibition  of  the  manufacture  and  sale  of  intoxicating  liquors  is 
fully  within  the  police  power  of  the  States.  It  seems,  however, 
that  there  is  a  limitation,  viz. :  where  the  law  interferes  with  some 
vested  rights  of  property.  This,  however,  has  not  yet  been  ex- 
pressly passed  upon  by  the  highest  judicial  authority,  though 
there  are  dicta  to  that  effect  in  both  of  the  above  cases.  "No 
one,"  said  one  of  the  judges  in  Bartemeyer  v.  Iowa,  "  has  ever 
doubted  that  a  Legislature  may  prohibit  the  vending  of  articles 
deemed  injurious  to  the  safety  of  society  provided  it  does  not 
interfere  with  vested  rights  of  property.  When  such  rights  stand 
in  the  way  of  the  public  good  they  can  be  removed  by  awarding 
compensation  to  the  owner.  When  they  are  not  in  question,  the 
claim  of  a  right  to  sell  a:  prohibited  article  can  never  be  deemed 
one  of  the  privileges  and  immunities  of  a  citizen." 

Another  constitutional  question  of  an  important  character  was 
raised  in  the  Slaughter  House  Cases.  It  was  argued  that  the  grant 
to  the  Slaughter  House  Company  violated  the  Thirteenth  Amendment 
to  the  Constitution  by  creating  an  "involuntary  servitude,"  and  that 
it  also  violated  the  Fourteenth  Amendment,  which  provides:  "No 
State  shall  make  or  enforce  any  law  which  shall  abridge  the  privi- 
leges or  immunities  of  citizens  of  the  United  States,  nor  shall  any 
State  deprive  any  person  of  life,  liberty  or  property  without  due 
process  of  law,  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws."  But  the  court  held  that  the  Thirteenth 
Amendment  had  nothing  to  do  with  the  case,  because  the  "invol- 
untary servitude"  prohibited  by  it  referred  only  to  some  species 
of  personal  slavery,   such  as  African  slavery,  which  it  had  been 


CONSTITUTIONAL    CASES    SIMPLIFIED.  277 

passed  primarily  to  prevent  for  all  time.  As  to  the  other  objection 
the  court  held  that  it  was  absurd  to  say  that  the  grant  in  question, 
deprived  anybody  of  their  life,  liberty,  or  property ;  that  the  "  privi- 
leges or  immunities  "  of  citizens  of  the  United  States  do  not 
include  the  right  to  hold  property,  engage  in  business,  etc.,  and 
that  the  inhibition  against  the  States  "  denying  to  any  person  the 
equal  protection  of  the  law  "  was  aimed  (as  the  history  of  the 
time  shows)  exclusively  at  State  statutes  which  were  one-sided 
and  oppressive  in  their  effect  upon  the  emancipated  blacks.  Four 
judges,  however,  did  not  agree  with  this  latter  conclusion. 

In  later  cases,  it  has  been  held  that  the  right  to  practice  law  in 
State  courts  (Bradwell  v.  Illinois,  ante  p.  272)  ;  the  right  to  sell  in- 
toxicating liquors  (Bartemeyeru.  Iowa,  Beer  Co.  v.  Massachusetts, 
p.  275,  are  not  "privileges  and  immunities  of  citizens  of  the 
United  States  "  within  the  Fourteenth  Amendment. 


278  CONSTITUTIONAL    CASES    SIMPLIFIED. 


REGULATION  OF  RAILROADS. 


RAILROAD   COMPANY  v.  FULLER. 

[17  Wall.  560.] 

A  statute  of  Iowa  provided  as  follows,  viz.  :  — 

1.  That  each  railroad  company  in  the  State  should 
annually,  in  September,  fi.x  its  rates  for  the  transpor- 
tation of  passengers  and  freights. 

2.  That  it  should,  on  the  first  day  of  the  next 
month,  post  a  printed  copy  of  its  rates  at  its  stations 
and  depots,  and  keep  it  there  during  the  whole  year. 

A  failure  to  comply  with  this  act,  or  the  charging  of 
a  higher  rate  than  was  posted,  subjected  the  offending 
company  to  the  payment  of  a  penalty. 

The  Chicago  and  Northwestern  Railroad  Company 
posted  up  their  rates  as  required,  but  one  day  charged 
a  man  named  Fuller  more  than  their  schedule  tariff^ 
for  which  they  were  fined  in  an  Iowa  court. 

The  railroad  company  appealed  to  the  Supreme 
Court  of  the  Uiiited  States,  and  they  tried  hard  to 
convince  that  tribunal  that  the  Iowa  statute  (the  rail-, 
road  running  throuo-h  several  States)  "  was  a  regula- 
tion  of  commerce,  and  invalid."  But  the  court 
considered  it  a  regulation  of  police,  and  valid. 

"  The  statute,"  said  Mr.  Justice  Swayne,  "  only 
required  that  the  rates  shall  be  fixed,  made  public, 
and  honestly  adhered  to.  In  this  there  is  nothing  un- 
reasonable or  onerous.     The  public  welfare   is   pro- 


CONSTITUTIONAL    CASES    SIMPLIFIED.  279 

moted  without  wrong  or  injury  to  the  company.  The 
statute  was,  doubtless,  deemed  to  be  called  for  by  the 
interests  of  the  community  to  be  affected  by  it,  and  it 
rests  upon  a  solid  foundation  of  reason  and  justice. 
It  is  not,  in  the  sense  of  the  Constitution,  a  regulation 
of  commerce.  It  is  a  police  regulation,  and,  as  such, 
forms  a  portion  of  the  immense  mass  of  legislation 
Avhich  embraces  everything  within  the  territory  of  a 
State  not  surrendered  to  the  general  government,  all 
which  can  be  most  advantageously  exercised  by  the 
States  themselves." 

It  is  under  the  police  power  of  tlie  States  that  the  railroads  of 
the  country  are  regulated.  Thus,  under  this  power,  railroads  may- 
be compelled  to  fence  their  tracks ;  to  check  their  speed  at  exposed 
places;  to  carry  impartially  for  all  persons;  to  permit  other  roads 
to  cross  their  track,  and  to  share  the  expense  of  the  crossing;  to 
ring  a  bell  or  sound  a  whistle  at  crossings,  or  to  station  a  flagman 
at  such  places ;  to  exhibit  their  rates  of  fare  (as  in  the  principal 
case),  and  the  like. 


280  CONSTITUTIONAL    CASES    SIMPLIFIED. 


REGULATION  OF  CHARGES. 


PEIK  V.  CHICAGO  A]ST>  NORTHWESTERN 
RAILWAY  COMPANY. 

[4  Otto,  164:.] 

By  its  charter,  the  Chicago  and  Northwestern  Rail- 
road Company  was  authorized  to  <'  demand  and  re- 
ceive such  sums  of  money  for  the  transportation  of 
persons  and  property,  and  for  storage  of  property  as 
it  shall  deem  reasonable."  This  charter  was  granted 
by  the  State  of  Wisconsin,  whose  Constitution  at  that 
time  provided  that  acts  for  the  creation  of  corporations 
might  be  at  anytime  altered  or  repealed  by  the  Legis- 
lature. In  1874  the  Grangers  took  a  hand  in  legisla- 
tion, and  passed  laws  regulating  the  charges  of  railroad 
companies  in  the  State.  The  Chicago  and  North 
Western  Railroad  Company  tried  to  have  these  statutes 
declared  void  as  to  them,  but  without  success. 
"  Where  property  has  been  clothed  with  a  public  in- 
terest," said  the  Chief  Justice,  "  the  Legislature  may 
fix  a  limit  to  that  which  shall  in  law  be  reasonable  for 
its  use.  This  limit  binds  the  courts  as  well  as  the 
people.  If  it  has  been  improperly  fixed,  the  Legisla- 
ture, not  the  courts,  must  be  appealed  to  for  the 
change." 


CONSTITUTIONAL    CASES    SIMl'LIFIKD.  281 


CHICAGO,  BURLINGTON   AXD    QUIXCY    RAIL- 
WAY  COMPANY  V.  IOWA. 

[4  Otto,  155.] 

In  1870  the  Granger  nioveinent  in  several  of  the 
States  culminated  in  tiie  passage  of  laws  regulating 
the  rates  which  railroad  companies  should  charge  for 
the  transportation  of  persons  and  property.  Among 
others  the  Iowa  Legislature  passed  a  law  fixing  the 
maximum  rate  of  charges  for  the  transportation  of 
freight  and  passeuijers  in  the  different  railroads  in  the 

O  J.  o 

State.  The  Chicago,  Burlington  and  Quincy  Railroad, 
as  lessee  of  several  other  roads  in  the  State,  was 
especially  displeased  with  the  law,  and  tried  to  enjoin 
the  State  officers  from  enforcing  it,  for  the  following 
reasons  :  — 

First,  the  railroad  said  that  the  Legislature  had  no 
right  to  say  what  it  should  charge  for  its  services. 
Bnt  the  court  answered:  "Railroad  companies  are 
carriers  for  hire.  They  are  incorporated  as  such,  and 
given  extraordinary  powers  in  order  that  the}'^  may  the 
better  serve  the  public  in  that  capacity.  They  are, 
therefore,  engaged  in  a  public  employment,  affecting 
the  public  interest,  and  subject  to  legislative  control 
as  to  their  rates  of  fine  and  freight  unless  protected 
by  their  charters." 

Beaten  from  this  ])osition  the  railroad  said  that  if 
the  State  had  the  power  it  had  never  used  it  before, 
and  from  this  tried  to  imply  that  the  State  had  relin- 
quished it.  But  the  court  answered  again:  "  It  is  a 
matter  of  no  importance  that  the  power  of  regulation 
now  under  consideration  was  not  exercised  for  more 


282  CONSTITUTIONAL    CASES    SIMPLIFIED. 

than  twenty  years  after  this  company  was  organized. 
A  power  of  government  which  actually  exists  is  not 
lost  by  non-user.  A  good  government  never  puts 
forth  its  extraordinary  powers,  except  under  circum- 
stances which  require  it.  That  government  is  the 
best  which,  while  performing  all  its  duties,  interferes 
the  least  with  the  lawful  pursuits  of  its  people." 

Driven  now  quite  into  a  corner,  the  railroad  pleaded 
that  before  this  law  was  passed,  it  had  pledged  its  in- 
come as  security  for  the  payment  of  debts  incurred, 
and  had  leased  its  road  to  a  tenant  that  relied  upon 
the  earnings  for  the  means  of  paying  the  agreed  rent. 
But  again  the  court  shook  its  head  and  answered  : 
*'  The  company  could  not  grant  or  pledge  more  than 
it  had  to  give.  After  the  pledge,  and  after  the  lease, 
the  property  remained  within  the  jurisdiction  of  the 
State,  and  continued  subject  to  the  same  governmental 
power  that  existed  before." 

The  railroad  haviiiij  no  more  arj^uments  to  offer  grave 
up  the  fight. 


MUNN  V.   ILLINOIS. 

[4  Otto,  113.] 

The  grain  elevators  of  Chicago  are  immense  struc- 
tures, holding  from  300,000  to  1,000,000  bushels  at 
once,  according  to  their  size.  But  they  are  in  the 
hands  of  a  few  great  capitalists,  and  the  Legislature  of 
Illinois,  coming  to  the  conclusion  that  their  charges 
were  excessive  and  unfair,  undertook  to  limit  them 
and  to  prescribe  by  law  the  maximum  which  they  should 


CONSTITUTIONAL    CASES    SIMPLIFIED.  283^ 

be  able  to  collect  from  their  customers.  The  elevator 
men  did  not  like  this  law  at  all,  and  made  a  great 
effort  to  have  it  declared  unconstitutional,  first  by 
the  Supreme  Court  of  the  State  of  Illinois,  and 
next  by  the  Supreme  Court  of  the  United  States.  But 
in  neither  tribunal  did  they  succeed ;  the  law  was 
sustained. 

As  a  general  thing  a  man  has  a  right  to  sell  his  goods  at  his  own 
prices,  and  eanuot  be  compelled  to  part  with  them  against  his  will. 
But  there  are  several  exceptions  to  this  rule,  and  one  of  these  is 
the  case  of  common  carriers.  Munn  v.  Illinois  is  an  important 
case,  making,  as  it  does,  the  test  the  fact  that  the  employment  reg- 
ulated is  a  public  one,  and  holding,  as  it  does,  that  the  business  of 
conducting  elevators  for  grain  is  a  "public"  employment  within  the 
rule. 


284  CONSTITUTIONAL    CASES    SIMPLIFIED. 


CHAPTER  YII.  —  MISCELL A:N'E0US 

CASES. 


''DUE  PROCESS   OF  LAW"  — ''LAW  OF   THE 
LAND." 


MURRAY'S   LESSEE   v.  HOBOKEX  LAND   CO. 

[18  How.  272.]  • 

Samuel  Swartwout,  of  New  Jersey,  a  public  officer 
of  the  United  States,  was  found  one  day  to  be  a 
debtor  to  the  government.  By  virtue  of  a  statute 
of  Congress,  authorizing  the  lands  of  debtors  to  the 
government  to  be  seized  and  sold  on  a  distress  war- 
rant issued  by  the  Secretary  of  the  Treasury,  Samuel's 
lands  were  taken  possession  of  in  this  summary  man- 
ner, sohl,  and  the  proceeds  turned  into  the  Treasury. 
Samuel  took  no  heed  of  this  proceeding,  but  sold  the 
same  land  to  the  defendant.  The  plaintiff,  who  was 
the  purchaser  at  the  government  sale,  now  brought 
suit  against  the  defendant  for  the  land.  The  latter 
claimed  that,  as  the  amount  due  from  Samuel  to  the 
government  had  never  been  ascertained  by  any  trial, 
and  as  the  warrant  under  which  the  land  was  sold  had 
not  been  issued  from  any  court,  the  sale  was  void,  as 
there  had  been  no  "due  process  of  law,"  as  required 
by  the  Constitution. 


CONSTITUTIONAL    CASES    SIMPLIFIED.  285 

But  the  court  thouo-ht  otherwise.  "  Thouo-h  due 
process  of  hiw,"  said  Mr.  Justice  Curtis,  "  genendly 
implies  and  includes,  actor,  reus,  judex,  regular  allega- 
tions, opportunity  to  answer,  and  a  trial  according  to 
some  settled  judicial  proceedings,  yet  this  is  not  uni- 
versally true.  There  may  be,  and  we  have  seen  that 
there  are,  cases  under  the  law  of  Eno-land  after  Magna 
Charta,  and  as  it  was  brought  to  this  country  and 
acted  on  here,  in  which  process  in  its  nature  final 
issues  against  the  body,  lands  and  goods  of  certain 
public  officers  without  any  such  trial." 

That  provision  in  tlie  Constitution  whicli  says  tliat  no  one  shall 
be  deprived  of  "life,  liberty  or  property  without  due  process  of 
of  law,"  was  introduced  to  jjuard  against  a  repetition  of  such 
practices  as  obtained  in  France  before  the  Revolution,  where  a 
letter  from  the  king  sent  a  man  to  the  Bastile  for  good.  Our 
ancestors  demanded  this  protection,  and  first  got  it  in  Magna 
Charta,  which  provides  "that  no  freeman  shall  be  taken,  or  im- 
prisoned, or  disseized,  or  outlawed,  or  banished,  or  anyways  de- 
stroyed, nor  will  the  king  pass  upon  him  or  commit  him  to  prison, 
unless  by  the  judgment  of  his  peers  and  the  law  of  the  land." 
The  phrases  "law  of  the  land"  and  "due  process  of  law"  are 
identical,  and  refer  to  the  common  or  statute  law  of  the  land,  so 
far  as  the  Legislature  keeps  within  the  principles  of  right  and 
justice.  As  Magna  Charta  was  obtained  to  restrain  the  arbitrary 
exercise  of  kingly  powers,  so  this  provision  of  the  Constitution 
restrains  the  arbitrary  actions  of  Legislatures.  Daniel  Webster, 
the  great  expounder,  lias  said  of  this  provision :  "  Everything  which 
may  pass  under  the  form  of  an  enactment  is  not  to  be  considered 
the  law  of  the  land.  If  this  were  so,  acts  of  attainder,  bills  of 
pains  and  penalties,  acts  of  contiscation,  acts  reversing  judg- 
ments, and  acts  directly  transferring  one  man's  estate  to  another, 
legislative  judgments,  decrees  and  forfeitures,  in  all  possible  forms, 
would  be  the  law  of  the  land.  *  *  *  The  administration  of 
justice  would  be  an  empty  form,  an  idle  ceremony.  Judges  would 
sit  to  execute  legislative  judgments  and  decrees,  not  to  declare  the 
law  or  administer  the  justice  of  the  country." 

"  By  the  law  of  the  land,  is  most  clearly  intended  the  general 
law  —  a  law  which  hears  before  it  condemns,  which  proceeds  upon 


286  CONSTITUTIONAL   CASES    SIMPLIFIED. 

inquiry,  and  renders  judgment  only  after  trial."  But,  as  laid  down 
in  Murray's  Case,  supra,  the  same  forms  are  not  always  necessary; 
in  some  cases  the  government  may  interfere  directly  and  without  a 
trial.  So,  under  this  provision,  a  person  is  not  entitled  to  a  jury 
trial,  but  his  case  may  be  tried  by  a  judge,  or  military  offenders  may 
be  tried  by  military  tribunals,  provided  everything  conforms  to  the 
established  principles  of  right  and  justice. 


CONSTITUTIONAL    CASES    SIMPLIFIED.  287 


''EX  POST  FACTO"  LAWS. 


CALDER  V.  BULL. 

[3  Dall.  386.] 

In  the  year  1793  a  Probate  Court  in  Connecticut 
rendered  a  decree  refusino;  to  admit  a  certain  will  to 
probate,  and  the  parties  presenting  it,  having  failed  to 
appeal  within  the  time  prescribed  by  statute,  there 
was  nothing  further  that  the  court  could  do  for  them 
in  the  matter.  At  this  juncture,  the  Legislature,  at 
their  request,  passed  a  law  setting  aside  the  decree  of 
the  Probate  Court,  and  ordering  a  new  hearing.  The 
court  heard  the  case  again,  and  this  time  made  a  de- 
cree establishing  the  will.  The  other  side  now  ap- 
pealed to  the  Supreme  Court  of  the  United  States, 
claiming  that  the  act  of  the  Legislature  was  an  ex  post 
facto  law  and,  therefore,  void.  But  the  Supreme  Court 
didnotagree  with  them.  "  In  my  opinion,"  said  jNIr. 
Justice  Chase,  "the  true  distinction  is  between 
ex  pos^t  facto  laws  and  retrospective  laws.  Every  ex 
post  facto  law  must  necessarily  be  retrospective,  but 
every  retrospective  law  is  not  an  ex  post  facto  law. 
The  former  only  are  prohibited.  *  *  *  The  plain 
and  obvious  meaning  and  intention  of  the  prohibition 


288  CONSTITUTIONAL    CASES    SIMPLIFIED. 

is  this  :  that  the  Legislature  shall  not  pass  laws  after 
a  fact  done  by  a  subject  or  citizen  which  shall  have  re- 
lation to  such  fact,  and  shall  imiiish  him  for  havino- 
done  it.  The  prohibition  considered  in  this  light  is  an 
additional  bulwark  in  favor  of  the  personal  security  of 
the  subject  to  protect  his  person  from  punishment  by 
legislative  acts  bearing  a  retroactive  operation.  I  do 
not  think  it  was  intended  to  secure  the  citizen  in  his 
private  rights  of  either  property  or  contract.  I  will 
state  what  laws  I  consider  ex  post  facto  within  the 
words  and  intent  of  the  prohibition  :  — 

"1.  Every  law  that  makes  an  action  done  before 
the  passage  of  the  law,  and  which  was  innocent  when 
done,  criminal,  and  punishes  such  action. 

"  2.  Every  law  that  aggravates  a  crime,  or  makes  it 
greater  than  it  v/as  when  committed. 

"  3.  Every  law  that  changes  the  punishment  and 
inflicts  a  greater  punishment  than  the  law  annexed  to 
the  crime  when  committed. 

"4.  Every  law  that  alters  the  legal  rules  of  evidence 
and  receives  less  or  ditferent  testimonythan  the  law 
required  at  the  time  of  the  commission  of  the  offence, 
in  order  to  convict  the  offender." 

And  as  the  Connecticut  statute  did  not  ftdl  within 
any  of  the  above  four  divisions,  the  court  held  that  it 
was  valid. 

The  Constitution  pi'ohibits  both  the  States  and  the  United  States 
from  passing  ex  post  facto  laws.  All  retrospective  laws  would 
seem  to  be  embraced  in  the  term  ex  post  facto  laws,  but  Calder 
V.  Bull  determined  that  in  the  United  States  Constitution  these 
words  are  limited  to  laws  of  a  criminal  nature.     Laws  of  this  kind 


CONSTITUTIONAL    CASKS    SIMPLIFIED.  289 

according    to    Mr.    Justice    Chase   may    be    classed    under  four 
heads :  — 

1.  A  laio  that  makes  an  action  done  before  the  passing  of  the  late, 
and  which  was  innocent  when  done,  criminal,  and  punishes  such 
action.  —  At  common  law  adultery  was  not  a  criminal  offence.  A. 
commits  adultery  in  December,  1850.  In  January,  1851,  the  Legis- 
ture  passes  a  law  making  adultery  punishable  with  fine  and  impris- 
onment, whether  committed  befoi'e  or  after  its  passage.  The 
statute  would  be  void  as  to  A.'s  act,  because  ex  post  facto. 

2.  A  law  aggravating  a  crime  or  making  it  greater  than  it  loas  when 
committed.  —  In  1880,  gambling  in  the  State  of  Missouri  was  a  mis- 
demeanor. A  State  law  passed  in  1881,  and  declaring  those  con- 
victed of  gambling  in  1880  to  be  felons,  would  be  ex  post  facto  and 
void. 

3.  A  law  changing  the  punishment  and  inflicting  a  greater  punish- 
ment than  the  law  annexed  to  the  crime  when  committed.  —  A  negro  was 
tried  in  Alabama  in  1866  for  burglary.  After  the  crime  was  com- 
mitted, the  puuishment  for  burglary  was  changed  from  imprison- 
ment for  three  years  to  imprisonment  tov  five  years,  or  death,  in  the 
discretion  of  the  jury.  It  was  held  that  the  negro  could  only  be 
punished  under  the  old  law.  Miles  v.  State,  40  Ala.  39.  But  a  law 
which  ameliorates  the  offence  by  making  the  punishment  less  is  not 
within  the  rule;  and  a  subsequent  increase  of  punishment  for  a 
second  offence  is  not  ex  post  facto.  Rand  v.  Commonwealth,  9 
Gratt.  738. 

4.  A  laio  lohich  alters  the  legal  rules  of  evidence  and  receives  less  or 
different  testimony  than  was  required,  at  the  time  of  the  commission  of 
the  offence,  in  order  to  convict  the  offender.  — The  law  of  Alabama  was 
that  a  conviction  could  not  be  had  on  the  testimony  of  an  accom- 
plice. Subsequently  a  statute  was  passed  enacting  that  this  law 
should  not  extend  to  misdemeanors.  But  it  was  held  that  this  could 
not  apply  to  misdemeanors  committed  before  its  passage.  Hart  v. 
State,  40  Ala.  32.  But  the  following  kinds  of  laws  have  been  held 
not  within  this  provision,  viz. :  A  law  which  changes  the  practice  in 
criminal  cases,  but  preserves  to  the  prisoner  his  substantial  rights 
(State  v.  Manning,  14  Tex.  402;  State  v.  Corson,  59  Me.  137) ;  or 
which  takes  away  from  him  the  privilege  of  mere  technical  objec- 
tions (Com.  v.  Hall,  97  Mass.  570)  ;  or  which  limits  the  number  of 
peremptory  challenges  to  jurors  (Dowling  v.  State,  5  S.  &  M.  664)  ; 
or  modifies  the  ground  of  challenge  for  cause  (Stokes  v.  People,  53 

19 


290  CONSTITUTIONAL    CASES    SIMPLIFIED. 

N.  Y.  164)  ;  or  permits  a  change  of  venue  for  the  purposes  of  a  fair 
trial.     Gut  v.  State,  9  Wall.  35. 

The  Supreme  Court  have  lately  extended  the  rules  in  Calder  v. 
Bull,  and  have  announced  the  doctrine  that  any  law  passed  after 
the  commission  of  an  offence  which  alters  the  position  of  a  party  to  his 
disadvantage,  is  an  ex  post  facto  law,  and  void  as  to  him.  Kring  v. 
State,  16  Cent.  L.  J.  308. 


CONSTITUTIONAL    CASES    SIMPLIFIED,  291 


"  TWICE  IN  JEOPARDY." 


UNITED   STATES   v.  PEREZ. 
[9  Wheat.  579.] 

Joseph  Perez  was  tried  in  New  York  for  a  capital 
offence  ;  but,  the  jury  being  uniible  to  agree,  were  dis- 
charged by  tlie  court.  Joseph  Perez  afterwards 
claimed  his  discharge,  arguing  that  he  could  not  be 
tried  again  as  he  had  been  already  once  in  jeopardy 
for  the  crime  charged. 

But  the  court  did  not  think  so.  "  We  are  of  opin- 
ion," said  Judge  Story,  "  that  the  facts  constitute  no 
legal  bar  to  a  future  trial.  The  prisoner  has  not  been 
convicted  or  acquitted,  and  m;iiy  again  be  put  on  his 
defence." 

Art.  V.  of  the  amendments  to  the  Constitution  of  the  United 
States  says  that  no  person  shall  "  be  subject  for  the  same  offence 
to  be  twice  put  in  jeopardy  of  life  or  limb."  The  meaning  of  this 
is  that  one  trial  and  one  verdict  protect  a  person  against  a  subse- 
quent accusation  for  the  same  offence,  whether  the  verdict  be  for 
or  against  him,  or  whether  the  courts  are  satisfied  with  the  verdict 
rendei'ed  or  not.  Therefore,  when  a  person  charged  with  a  crime 
is  put  on  trial  before  a  court  of  competent  jurisdiction,  and  a  jury 
has  been  empanneled,  he  is  "  in  jeopardy,"  and  cannot  again  be  tried 
for  the  same  crime,  whatever  may  be  the  result  of  the  first  trial. 

There  are,  however,  as  usual,  some  important  exceptions  to  this 
rule,  viz. : 

1.  Where  the  prisoner  is  convicted,  but  on  his  own  appeal  the 
judgment  is  set  aside  either  by  the  court  that  tried  him,  or  an  ap- 
pellate court. 


292  constitutional'  cases  simplified. 

2.  Where  the  court  which  tried  him  has  no  jurisdiction  of  the 
case. 

3.  Where  the  indictment  was  defective. 

4.  Where  the  jury  is  discharged  through  necessity,  as  when  a 
juror  talses  sick,  or  dies,  or  the  jury  cannot  agree,  as  in  Perez's  case. 

In  all  these  caees  the  prisoner  may  be  put  on  a  second  trial,  for 
he  has  not  been  in  legal  "jeopardy"  within  that  terra  as  used  in 
the  Constitution. 


CONSTITUTIONAL    CASES    SIMPLIFIED.  293 


"  CRUEL  AND  UNUSUAL  PUNISHMENTS." 


WILKERSON  V.  UTAH. 

[  9  Otto,  130.  ] 

Wilkerson  was  tried  in  the  country  of  the  Mormons 
and  convicted  of  the  murder  of  William  Baxter,  in  Julv, 
1877.  According  to  the  law  of  Utah  a  person  convicted 
of  any  crime,  the  punishment  of  which  is  death,  may  be 
shot,  hanged  or  beheaded,  as  the  court  may  direct  or  as 
the  criminal  may  choose.  Wilkerson  not  making  the 
grim  election  which  the  law  allowed,  the  judge  sentenced 
him  to  be  shot,  and  the  point  was  made  in  the  Supreme 
Court  that  to  put  a  man  to  death  by  shooting  was  a 
**  cruel  and  unusual  punishment"  within  the  meaning 
of  those  words  in  the  Constitution. 

But  the  court  was  not  of  this  opinion.  *'  Difficulty," 
said  Mr.  Justice  Clifford,  "  would  attend  the  effort 
to  define  with  exactness  the  extent  of  the  constitu- 
tional provision,  which  provides  that  '  cruel  and  un- 
usual punishments '  shall  not  be  inflicted  ;  but  it  is 
safe  to  affirm  that  punishments  of  torture,  such  as 
those  mentioned  by  Blackstone,  and  all  others  in  the 
same  line  of  unnecessary  cruelty,  are  forbidden  by  that 
amendment  to  the  Constitution." 

The  cases  mentioned  by  Blackstone,  are  where  the  prisoner 
convicted  of  treason  was  drawn  on  hurdles  to  the  place  of  execu- 
tion, and  then  disembowelled,  his  entrails  burned  before  his  eyes, 
and  after  being  hanged  and  cut  down  alive  a  few  times  he  was 


294  CONSTITUTIONAL    CASES    SIMPLIFIED. 

beheaded  and  quartered,  and  his  limbs  sent  around  the  .country  to 
adorn  the  walls  of  the  larger  cities.  This  is  a  way  our  ancestors 
had  of  making  crime  odious. 

The  modern  theory  of  punishment  is  that  it  should  only  be 
inflicted  for  two  purposes,  viz. :  to  reform  the  criminal,  and  to 
protect  society.  Capital  punishment  is  permitted  for  this  end,  and 
therefore  torture  is  not  permitted. 

A  recent  case  in  California  touched  upon  the  construction  of  the 
constitutional  provision  prohibiting  "  cruel  and  unusual  punish- 
ments." Among  the  many  methods  which  the  people  of  California 
tried  to  make  .John  Chinaman's  lot  not  a  happy  one  was  the  pass- 
age of  an  ordinance  of  San  Francisco,  that  every  male  person 
committed  to  the  county  jail  should  immediately  upon  his  arrival 
there  have  the  hair  of  his  head  clipped  short.  This  was,  of  course, 
directed  against  John's  queue,  for  to  lose  this  appendage  is  considered 
among  Chinamen  as  adisgrace,  and  as  entailing  terrible  punishment 
after  death.  But  the  United  States  Court  decided  that  as  applied 
to  John  this  was  a  "  cruel  and  unusual  punishment,"  and,  thereforCj 
not  constitutional.    Ho  Ah  Kow  v.  Nunan,  18  Am.  L.  Reg.  676. 


Table  of  Abbeeviations  in  this  Volume. 


Ala.       .     . 
Allen    .     .     . 
Am.  L.  Reg. 
Am.  Lcl.  Cas. 
Atk.      .     . 


Alabama  Supreme  Court  Reports,  1840- 
AUeu's  Massachusetts  Reports,  186 1-1867. 
American  Law  Register,  18 — . 
American  Leading  Cases,  1871. 
Atkyns'  English  Chancery  Reports,  1736- 
1755. 


Barb.    .     . 
Barnard.  Ch. 
Beav.    . 
Bing.     .     . 


Bisp.  Eq. 
Blatchf. 

Bridg. 

Bro.  Ch. 


Barbour's  New  York  Supreme  Court  Re- 
ports, 1847-1875. 

Barnardiston  English  Chancery  Reports, 
1740-1741 

Beavan's  English  Rolls  Court  Reports, 
1836-1866. 

Bingham's  English  Common  Pleas  Re^ 
ports,  1822-1834. 

Bispham's  Treatise  on  Equity,  1878. 

Blatchford's  U.  S.  Circuit  Court  Reports, 
1845-1882. 

Bridgman's  English  Common  Pleas  Re- 
ports, 1613-1621. 

Brown's  English  Chancery  Reports,  1778- 
1794. 


Cas.  Temp. 

Talbot. 
Cas.  Temp. 

Finch     . 
Cent.  L.  J. 


Cases  in  the  time  of  Chancellor  Talbot, 
1734-1738. 

Cases  in  the  time  of  Chancellor  Finch. 

Central  Law  Journal,  1874- 

(  295  ) 


296 

Ch  Div.    . 

Co.        .     . 

Colles  P.  C. 

Conn. 

Coole}^  Princ. 
Const.  L.    . 
Cox.  Ch. 

C ranch 

Dall.     .     .     . 

Daly     .     .     . 

Dana    , 
Deady 

DeG.  &  Sra. 

Dr.  &  Sm.      . 

Dr.  &  War.    . 

Dyer.    .     . 


Eden    .     . 
Eq.  Cas.    . 
Eq.  Cas.  Ab. 
Esp.      .     . 


TABLE    OF    ABBRP:VIATI0XS. 

.  Enghsh  High  Court,  Chancery  Division, 

Reports,  1875- 
.   Coke's    English    Kings    Bench    Reports, 

1572-1616. 
.   Colles'  English  House  of  Lords  Reports, 

1697-1714. 
.  Connecticut  Supreme  Court  Reports,  1814- 
.  Cooley  Principles  of  Constitutional  Law, 

1882. 
.   Cox's    English    Chancery    Cases,    1783- 

1796. 
.  Cranch's  U.   S.   Supreme  Court  Reports, 

1800-181,5. 

.  Dallas'  U.  S.  Supreme  Court  Reports, 
1790-1800. 

.  Daly's  New  York  Common  Pleas  Reports, 
1859-1880. 

.  Dana's  Kentucky  Reports,  1833-1840. 

.  Deady's  U.  S.  Circuit  Court  Reports, 
1861- 

.  DeGex  and  Smale's  English  Vice-Chan- 
cellor's Reports,  1846-1852. 

.  Drewry  and  Smale's  English  Chancery 
Reports,  1860-1865. 

.  Drury  and  Warren's  Irish  Chancer}^  Re- 
ports, 1841-1843. 

.  Dyer's  English  Kings  Bench  Reports, 
1513-1532. 

.  Eden's  Chancery  Reports,  1757-1767. 
.  English  Equity  Cases,  1876- 
.  English  Equity  Cases  Abridged,  1792. 
.  Espinasse's  English   Nisi  Prius  Reports, 
1793-1807. 


TABLE    OF    ABBREVIATIONS.  297 

Grant's  Cas.        .   Grant's  Pennsylvania  Cases,  1852-1863. 
Gratt Grattan's  Virginia  Reports,  1844-1881. 

H.  &  M.  .  .  .  Hemming  and  IMiller's  English  Vice- 
Chancellor's  Reports,  18G2-l«(i.5, 

Hare  ....  Hare's  English  Vice-Chancellor's  Reports, 
1841-1853. 

H.  L.  Cas.     .     .  English  House  of  Lords  Cases,  1847-1865. 

How Howard's  U.  S.  vSnpreme  Court  Reports, 

1843-1860. 

Huu  ....  Hun's  New  York  Supreme  Court  Reports, 
1873- 

111 Illinois  Reports,  1819. 

Ind Indiana  Supreme  Court  Reports,  1848. 

Indermaur  Ld.    .  Indermaur's    Leading   Cases   in    Equity, 

Cas.  Eq.      .     .        1881. 

Iowa     ....  Iowa  Supreme  Court  Reports,  1855. 

Ir.  Rep.   (L.)     .  Irish  Reports,  Common  Law,  1867-1878. 

Jac.  &  W.  .  .  Jacob  and  Walker's  English  Chancery  Re- 
ports, 1819-1821. 

Johns Johnson's  New  York  Reports,  1806-1823. 

Johns.  Ch.  .  .  Johnson's  New  York  Chancery  Reports, 
1814-1823. 

Jur.  (x.  s.)  .     .  English  Jurist  (new  series),  1855-1856. 

Kas Kansas  Supreme  Court  Reports,  1862- 

L.  R.  Ch.  .     .     .  English   Law  Reports   (Chancery)   1866- 

1875. 
L.  R.  Ch.  App.  .  English  Law  Reports  (Chancery  Appeal), 

1866-1875. 
L.  R.  Eq.  .     .     .  English    Law    Reports    (Equity),   1866- 

1875. 


298  TABLE    OF   ABBREVIATIONS. 

L.  R.  H.  L.  Cas.  .  English  Law  Reports  (House  of  Lords)^ 

1866-1875. 
L,  T.  (n.  s.)  .     .  English  Law  Times  (new  series),  1859- 

Macn.  &  G.    .     .  Maenaghten  and  Gordon's  English  Chan- 
cery Cases,  1849-1851. 

Macq Macqueen's   Scotch    Cases   in   House   of 

Lords,  1851-1873. 

Mass Massachusetts    Supreme    Court  Reports^ 

1804- 

Md Maryland  Supreme  Court  Reports,  1851- 

Md.  Ch.     .     .     .  Maryland  Chancery  Reports,  1847-1854. 

Me Maine  Supreme  Court  Reports,  1820- 

Miss Mississippi  Supreme  Court  Reports,  1818- 

Mos Moseley's     English     Chancery    Reports, 

1726-1731. 
Mylne  &  Cr.  .     .  Mylne  and  Craig's  English  Chancery  Re- 
ports, 1836-1840. 

N.  H New  Hampshire  Reports,  1816- 

N.  J.  (Eq.)   .     .  New  Jersey  Equity  Reports,  1830- 

N.  Y New    York    Court   of   Appeals    Reports,. 

1847- 

Otto      ....  Otto's    U.    S.    Supreme    Court    Reports,. 
1875- 

Paige  Ch.  .     .     .  Paige's    New    York    Chancery    Reports, 
1828-1845. 

Pa.  St Pennsylvania  State  Reports,  1844- 

Pet Peter's  United  States  Supreme  Court  Re- 
ports, 1827-1842. 

Phila Philadelphia  Reports,  1850. 

Pomeroy  Const.  .  Pomeroy's  Manual  of  Constitutional  Law> 
L 1883. 


TABLE    OF    ABBREVIATIONS.  299 

Prec.  in  Ch.  .  .  Finch's  Precedents  in  Chancery,  1689- 
1723. 

P.  Wms.  .  .  .  Peere  Williams'  English  Chancery  Re- 
ports, 1695-1736. 

Redf Redfield's  New  York  Surrogate  Reports, 

1857-1880. 
Rich.  Eq.  .     .     .  Richardson's    South    Carolina    Chancery 

Reports,  1844-1846. 

Sandf.  Ch.  .  .  Sandford's  New  York  Chancery  Reports,. 
1843-1847. 

Sel.  Cas.  Ch.  .     .  SelectCases  in  Chancery  (English). 

Sim Simon's  English  Vice-Chancellor's  Re- 
ports, 1826-1849. 

Sim.  (n.  s.)  .  .  Simon's  English  Vice-Chancellor's  Re- 
ports (new  series),  1850-1854. 

Snell  Eq.  .  .  .  Snell's  Treatise  on  Equity  Jurisprudence, 
1881. 

Story  .  .  .  .  Story's  U.  S.  Circuit  Court  Reports,  1839- 
1845. 

Swanst.  .  .  .  Swanston's  English  Chancery  Reports,. 
1818-1819. 

Tex Texas  Supreme  Court  Reports,  1846— 

Tud.  Ld.  Cas.     .  Tudor's  Mercantile  and  Marine  Cases. 

Tud.  Ld.  Cas.     . 

Q  Tudor's  Leading  Cases  on  Conveyancing. 

Vern Vernon'sEnglishChancery  Reports,  1681- 

1720. 
Ves Vesey,    jr.'s,  English  Chancery  Reports, 

1789-1816. 
Ves.  Sr.     .     .     .  Vesey,    sr.'s,  English  Chancery  Reports^ 

1747-1756. 


300 

Ves.  &  B. 
Yin.  Ab. 
Vt.  .     . 
Wall.     . 


TABLE    OF    ABBREVIATIONS. 

.  Vesey  &  Beames'  English  Chancery  Re- 
ports, 1812-1814. 

.  Viner's  Abridgement  of  Law  and  Equity, 
1791-1794. 

.  Vermont  Supreme  Court  Reports,  1826- 


AVh.  &  Tud. 
Cas.  Eq. 
Wheat. 

Wis.      . 
W.  R.   . 

Wms.  Real 

Assets 
W.  Ya. 


Ld. 


Wallace's  U.  S.  Supreme  Court  Reports, 

1863-1875. 
White    &    Tudor' s     Leading     Cases    in 

Equity. 
AVheaton's  United  States  Supreme  Court 

Reports,  1816-1827. 
Wisconsin  Supreme  Court  Reports,  1853- 
English  Weekly  Reporter,  1853- 

Williams'  Treatise  on  Real  Assets,  1861. 

West   Yirginia   Supreme   Court   Reports, 
1863- 


INDEX. 


ACCIDENT. 

Relief  in  equity  because  of,  82-93. 

Loss  of  documeuts,  82. 

Imperfect  execution  of  powers,  86. 

Powers  conflict  witli  trusts,  88. 

Accidental  forfeitures,  89-91. 

Accidental  penalties,  92,  93. 
When  equity  will  not  relieve,  84. 

ACTIONS. 
Equity  will  enjoin  actions  at  law  when,  129-181. 

ADMINISTRATION. 

Rule  as  to,  of  assets,  59,  60,  61. 
Marshalling  assets,  62,  63. 

ADVANCEMENT. 
Rules  as  to,  15. 

APPRAISEMENT  LAWS. 

Constitutionality  of,  249,  257,  259. 

BANKRUPTCY. 

When  States  may  pass  bankruptcy  laws,  250. 

BELLS. 

Nuisance  from,  143-145. 

"BILLS  OF  CREDIT." 
What  are,  211-214. 

BORROWING  MONEY. 
Power  of  States  as  to,  211-214. 
"Bills  of  credit,"  211-214. 

CARRIAGES. 
Tax  on,  not  a  "  direct  tax,"  194. 

(301) 


^02  INDEX. 

CESTUI  QUE  TRUST. 
Definition  of,  3. 

CHARGES.     (See  Regulatioxs.; 

CH.\RITABLE  TRUSTS. 
Do  not  fail,  20,  21. 
The  "cypres"  doctrine,  20,  21. 

CHINESE. 
Statute  prohibiting  under  penalty  emigration  of,  269,  270. 
Statute  ordering  queues  of,  to  be  clipped,  294. 

COMMERCE. 
Power  of  States  to,  215,  227. 
Local  regulations,  218. 
Definition  of,  219. 
And  the  police  power,  225-227. 

CONSTRUCTIVE  TRUSTS. 
Vendor's  lien  for  purchase  money,  22,  23. 

CONTRACT. 
Equity  will  enjoin  breach  of  contract  when,  132-134. 

CONTRACTS. 
A  grant  from  a  State  is  a  contract,  228. 
But  public  offices,  are  not,  230. 
Nor  are  licenses,  232. 

Charters  to  private  corporations  are,  234-241. 
Exemptions  from  taxation  are,  237. 
Must  be  expressed,  242. 

What  laws  impair  "obligation  of  contracts,"  246. 
Insolvent  laws  void  as  to  past  contracts,  246,  253. 
Effect  of  statute  of  limitations,  249,  254,  255. 
Of  stay  under  appraisement  laws,  249,  257-259. 
Of  laws  abolishing  imprisonment  for  debt,  249. 
Of  laws  exempting  property  from  execution,  249,  260,  261-266. 
Eminent  domain,  26^,  263. 

CONTRIBUTION. 
Between  sureties,  the  doctrine  in  equity,  71. 

CONVERSION. 
The  doctrine  of,  39,  40,  41,  42,  43. 

COPYRIGHT. 
At  common  law,  167. 


iNbl:x.  303 


COPYRIGHT  —  Continued. 
Under  statutes,  IGH. 
When  equity  will  enjoin  piracy,  IfiS. 
JSoHa/de  abridgements,  167,  168. 

CORPORATIONS.     (See  also  Railroads.) 

Charters  to  private  corporations  are  contracts,  234. 
So  as  to  collateral  stipulation  therein,  237. 
Contracts  not  implied,  242. 
Charters  to  municipal,  not  contracts,  244. 

CREDITORS. 

Conveyances  to  defraud,  109. 

CRUEL  AND  UNUSUAL  PUNISHMENT. 
What  is  a,  293,  294. 

CY  PRES. 

The  doctrine  of,  21. 

DEFINITIONS. 
Of  trust,  3. 
Of  trustee,  3. 
Of  cestui  que  trust,  3. 
Of  executory  trust,  7. 
Of  executed  trust,  7. 
Of  volunteer,  8. 
Of  resulting  trust,  15. 
Of  "cy  pres,^^  21. 
Of  general  legacy,  34. 
Of  specified  legacy,  34. 
Of  demonstrative  legacy,  34. 
Of  precatory  trusts,  11,  12,  13. 
Of  advancement,  15. 
Of  vendor's  lien,  22. 
Of  pecuniary  legacy,  34. 
Of  donatio  mortis  causa,  36. 
Of  conversion,  39,  40. 
Of  election,  46. 
Of  satisfaction,  55. 
Of  mistake,  97. 
Of  reconversion,  40. 
Of  performance,  50. 
Of  accident,  83. 


304  INDEX. 

DEFINITIONS  —  Continued. 
Of  actual  fraud,  105. 
Of  constructive  fraud,  105. 
Of  injunction,  130. 
"Direct  tax,"  194. 
"  Duty  of  tonnage,"  209. 
"Bill  of  credit,"  2U. 
"Regulation  of  commerce,"  215-227. 
"Commerce,"  219. 
"Eminent  domain,"  202. 
Police  power,  2(54. 
"Public  employment,"  283. 
"  Privileges  or  immunities,"  272,  274,  275. 
"Citizens,"  274. 
"  Involuntary  servitude,"  276. 
"Due  process  of  law,"  284-286. 
"Law  of  the  land,"  284-286. 
"  Ex  post  facto,'"  287-290. 
"  Twice  in  jeopardy,"  291,  292. 
"Cruel  and  unusual  puuishment,"  293,  294. 

"DIRECT  TAX." 

What  is  a,  194. 

DOMICIL. 
Effect  of  domicil  of  creditor  on  insolvent  laws,  251,  252. 

DONATIO  MOETIS  CAUSA. 

Rules  as  to,  3G,  37,  38. 

"DUE  PROCESS  OF  LAW." 

What  is,  284,  286. 

DUTIES. 

State  duties' on  imports,  197,  198. 
State  duties  on  exports,  199-201. 

"DUTY  OF  TONNAGE." 

What  is  a,  209. 

ELECTION. 

The  doctrine  of,  44,  45,  46,  47. 

ELEVATORS. 
Statutes  regulating  charges  of,  constitutional,  282,  283. 


INDEX.  305 

EMINENT  DOMAIN. 
Defiued,  2G2. 
Effect  of  power  of,  on  franchises,  202,  263. 

EXECUTED  TRUST. 
Definition  of,  7. 

EXECUTORY  TRUSTS.     (See  Trusts.) 
Deflnilion  of,  7. 

EXEMPTIONS. 
Constitutionality  of  laws  exempting  property  from  executor,  2G0 
2G1.  '""     ' 

EXPORTS. 

State  duties  on,  190-201. 

"  EX  POST  FACTO  "  LAWS. 
What  are,  and  what  are  not,  287-290. 

FEDERAL  AGENCIES. 
Cannot  be  taxed  by  State,  202-205. 

FIDUCIARY  RELATION. 
Bargains  between  persons  in,  107. 

FORFEITURES.     (See  Penalties  and  Forfeitures.) 
FORMER  EMPLOYMENT. 

Statements  as  to  when  enjoined,  176. 

FRAUD. 
Contracts  in  restraint  of  marriage,  102,  103. 
Bargains  witli  heirs,  104. 

Bargains  between  persons  in  fiduciary  relation,  107. 
Frauds  upon  creditors,  109. 
Frauds  upon  marital  rights.  111,  112. 
Frauds  upon  powers,  113,  114. 
£onaj^(Ze  purchasers  protected,  115. 

HEALTH. 

Protection  of  public  health  under  police  power,  264,  265. 
Statute  prohibiting  importation  of  cattle,  268,  269. 

HEIRS. 
Bargains  with,  104. 

HOUSE  OF  ILL-FAME. 

Equity  will  enjoin,  138. 


306  INDEX. 

HUSBAND  AND  WIFE. 

Frauds  ou  marital  rights,  111,  112. 

IMPLIED  POWERS.  _ 
Powers  implied  in  Constitution,  185-187. 

IMPORTS. 

State  duties  on,  197,  198. 

IMPRISONMENT. 
Laws  abolishing  imprisonment  for  debt  constitutional,  249,  256. 

INJUNCTIONS.     (See Actions;  Contract;  Nuisance;  Patents; 
Copyright;  Trade-marks.) 

INSOLVENT  LAWS. 

Impair  obligation  of  contracts  when,  246-253. 
Effect  of  doraicil  of  creditor  on,  251,  252. 

"JEOPARDY." 

Meaning  of,  291,  292. 

JURISDICTION. 

Equity  acts  on  the  person,  127,  128. 

"LAW  OF  THE  LAND." 
What  is,  284,  286. 

LAHVYERS. 

State  may  prescribe  qualification  of,  273,  274. 

LEGACIES.     (See  Wills.) 

LETTERS. 

Property  in,  169. 

LICENSES. 
Not  "  contracts  "  within  the  Constitution,  252. 
Nor  "  privileges  or  immunities,"  275. 

LIEN. 
"Vendor's  lien  for  purchase-money,  22,  23. 

LIQUORS. 
Licenses  to  sell,  not  contracts,  233. 

Nor  within  amendments  to  constitution,  275. 

LIMITATION. 

Constitutionality  of   statutes  of,  as  to  past  contracts,  249,  254, 
255. 


INDEX.  307 

LIMITATIONS  OF  POWER. 

General,  iu  Constitution  do  not  apply  to  States,  181-185. 

LITERARY  PIRACY.     (See  Copyright.) 

LIVERY  STABLE. 
Not  a  nuisance  per  se,  loi. 

LOTTERY. 
License  to  run  lottery  not  a  contract,  232. 

MARRIAGE. 
Contracts  in  restraint  of,  102. 

MARRIED  WOMEN. 

Equity  to  settlement,  73-75.  . 

Her  property  rights  in  equity,  74-76. 

Rights  and  liabilities  as  to  separate  estate,  77-79. 

Restraint  on  alienation,  80,  81. 

MARSHALLING  ASSETS. 
Rule  as  to,  62,  63. 

MASTER  AND  SERVANT. 
Statements  as  to  former  employment  when  enjoined,  176-178. 

MAXIMS  OF  EQUITY. 

"  Equity  follows  the  law,"  7,  66. 

"  Equity  looks  on  that  as  done  which  ought  to  be  done,"  39. 

"  Equity  imputes  an  intention  to  fulfill  an  obligation,"  48. 

"  Equality  is  equity,"  66,  71. 

"  He  who  seeks  equity  must  do  equity,"  73. 

"Equity  acts  in  personam,^^  127. 

MISTAKE. 

Mistakes  of  law  when  and  when  not  relieved,  94-98. 
Mistakes  of  fact  when  and  when  not  relieved,  99-101. 

MORTGAGE. 

Equitable  mortgages,  64,  65. 

MUNICIPAL  CORPORATIONS. 
Charters  to,  not  contracts,  244. 
But  property  of,  protected,  244,  245. 

NOISE. 
Nuisance  from  noise,  143-145. 
Bells,  143-145. 


308  INDEX. 

NOISE  — Continued. 

Improper  use;  horses  in  stable,  14G-148. 
Proper  use  noise  not  enjoined,  149-158. 

NOXIOUS  VAPORS. 

Equity  will  restrain,  135-137,  140. 

NUISANCE. 
Equity  will  I'estrain  nuisance,  135-137. 
Will  restrain  public  nuisance,  138,  139. 

House  of  ill-fame,  138. 
Will  resti-ain  smoke  and  noxious  vapors  and  smells,  140. 
Will  restrain  noise  :  bells,  143-145. 

Improper  use,  horses  in  stable,  146-148. 

Proper  use,  149-151. 
No  trade  a  nuisance  per  se,  153-155. 

Livery  stable,  154. 
May  be  disagreeable  without  being  hurtful,  15G-158. 
Coming  to  nuisance  no  defence,  159-161. 
Length  of  time  immaterial,  162,  163. 

OFFICES. 

Of  United  States  cannot  be  taxed  by  State,  303. 
Of  State  cannot  be  taxed  by  United  States,  206. 
Not  "contracts"  within  Constitution,  230. 

PATENTS. 

Infringement  of,  enjoined,  164-166. 

PENALTIES  AND  FORFEITURES. 
When  not  enforced  in  equity,  68,  69,  70. 
Relieved  from  on  ground  of  accident,  89,  92. 

PERFORMANCE. 

The  doctrine  of,  48-51. 

PILOTAGE  LAWS. 
Power  of  States  as  to,  218. 

POLICE  POWER. 

Commerce  and  the,  225-227. 
Protection  of  public  health,  264,  265. 
Resides  in  the  States,  266,  267. 

But  must  not  conflict  with  natural  rights,  268-271. 


INDEX.  309 


POWERS. 

Imperfect  execution  of,  remedied,  86. 

Powers  coupled  with  trusts,  88. 
Frauds  on,  113,  114. 

PRECATORY  TRUSTS. 
What  are,  II. 

*' PRIVILEGES  OR  IMMUNITIES." 
Admission  to  the  bar  not  within  this  terra,  272,  273. 
Nor  privileges  of  corporations,  274:. 
Nor  right  to  sell  liquors,  275. 

PURCHASERS. 

Bona  fide,  protected,  115. 

RAILROADS.     (See  Regulations.) 

RECONVERSION. 
The  doctrine  of,  40. 

REGULATIONS. 
Of  railroads  constitutional,  278,  279. 
And  of  rates  of  fare  on  railroads,  280-282. 
And  of  charges  of  elevators,  282,  283. 

RESULTING  TRUSTS. 
When  do  and  do  not  arise,  14,  15,  IG. 

REVOCATION. 
Trust  cannot  be  revoked  w.hen,  10. 

SATISFACTION. 
The  doctrine  of,  52-58. 

SHELLEY'S  CASE. 
.  Rule  of,  explained,  4. 
Does  not  apply  to  executory  trusts,  4,  6,  7. 

SMELLS. 
Equity  will  enjoin,  140. 

SMOKE. 

Equity  will  enjoin,  135,  137,  140. 

SPECIFIC  PERFORMANCE. 

Not  decreed  of  chattels,  \vhen,  116-120. 

Articles  of  special  value,  118,  119. 
Decreed  of  real  property,  121-124. 
When  not  decreed,  125,  126. 


310 


INDEX. 


STATES. 
Police  power  resides  in  the  States,  26G,  2G7. 
But  must  uot  conflict  witli  national  rights,  268-271. 
General  limitations  in  Constitution  do  not  apply  to,  181-185. 
Cannot  tax  federal  agencies,  202-205. 
Cannot  levy  "  duties  of  tonnage,"  208-210. 
Power  as  to  borrowing  money,  211-214. 
Cannot  "  regulate  commerce,"  215-227, 
Except  as  to  local  regulations,  218. 
And  in  matters  of  police,  225-227. 

STATUTE  OF  FRAUDS. 
Trusts  must  be  in  wi-iting,  2. 

STAY  LAWS. 

Constitutionality  of,  249. 

SURETIES. 
Contribution  between,  in  equity,  71. 

TAXATION.     (See  also  Duties.) 
Extent  of  the  taxing  power,  188-191. 

Cannot  be  exercised  on  property  beyond  jurisdiction,  191. 
Tax  must  be  for  public  purpose,  192,  193. 
What  are  "  direct  taxes,"  194-196. 
State  duties  on  "imports,"  197,  198. 
State  duties  on  exports,  199-201. 
States  cannot  tax  federal  agencies,  203. 
No  United  States,  State  agencies,  206. 
United  States  offices  not  to  be  taxed  by  State,  203. 
Nor  State  offices  by  United  States,  206. 
What  are  "  duties  of  tonnage,"  208-210. 
Exemptions  from  taxation  are  contracts,  237. 

TENANCY  IN  COxMMON. 
Rules  in  equity  as  to,  66,  67. 

TRADE. 
No  trade  a  nuisance  per  se,  153-155. 

TRADE-MARKS. 
Family  name  when  used  to  deceive  enjoined,  170. 

Otherwise  when  no  intent  to  deceive,  174,  175. 
No  relief  to  wrong-doer,  171. 
Right  to  trade-mark  acquired  by  nser,  172. 
What  may  be  subject  of  trade-mark,  172. 


INDEX.  311 

TKUSTEE. 

Uefinitiou  of,  3. 

TRUSTEES. 

Purchases  by  trustees  generally  invalid,  24,  25. 
Compensation  of,  26. 
Purchases  from  trustees,  27,  28. 
Responsibility  for  acts  of  co-trustee,  20,  30,  31. 

TRUSTS.     (See  also  Trustees.) 

Doctrine  of  uses  and  trusts  explained,  1,  2. 

Must  be  in  writing  by  statute,  2. 

Definition  of  trust,  3. 

Rule  in  Shelley's  case  does  not  apply  to  executory  trusts,  6. 

Imperfect  conveyance  constitutes  a  trust,  8. 

Except  as  to  volunteer,  9. 
Constructive  trust,  22-28. 

Vendor's  lien  for  purchase-money,  22,  28. 

Purchases  by  trustees,  24,  25,  20. 

Purchases  from  trustees,  27,  28. 
Cannot  be  revoked,  when,  10, 
Precatory  trusts,  11,  12,  13. 

When  resulting  trusts  do  and  do  not  arise,  14,  15,  IG. 
Failure  of  trust,  19. 
Charitable  trust  does  not  fail,  20. 
The  ''cy  pres^^  doctrine,  20,  21. 

USES. 

No  use  upon  a  use,  1. 

Doctrine  of  uses  explained,  1,  2,  3. 

The  statute  of  uses,  2. 

VOLUNTEER. 

Definition  of,  0. 

WILLS. 

The  different  kinds  of  legacies  and  their  effects,  33,  34,  35. 
Donatio  mortis  causa,  3G,  37,  38. 
Satisfaction  of  legacies,  52-58. 

woMen. 

State  may  refuse,  admission  to  bar,  273,  274. 


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